Cattani v. Marfuggi

• Citation: 902 N.Y.S.2d 539,74 A.D.3d 553
• Parties: Robert V. CATTANI, M.D., Plaintiff-Appellant, v. Richard A. MARFUGGI, M.D., Defendant-Respondent.
• Decision Date: 15 June 2010
• Court: New York Supreme Court Appellate Division

902 N.Y.S.2d 539 74 A.D.3d 553 Robert V. CATTANI, M.D., Plaintiff-Appellant, v. Richard A. MARFUGGI, M.D., Defendant-Respondent. Supreme Court, Appellate Division, First Department, New York. June 15, 2010.

Richard Paul Stone, New York, for appellant.

Lustberg & Ferretti, Glens Falls (Robert M. Lustberg of counsel), for respondent.

MAZZARELLI, J.P., MOSKOWITZ, DeGRASSE, MANZANET-DANIELS, JJ.

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 4, 2009, which granted plaintiff's motion to reargue a prior order, same court and Justice, entered on or about May 15, 2009, dismissing the complaint, adhered to the prior determination, imposed sanctions of $1,000 each on plaintiff and his counsel, awarded defendant reasonable attorneys' fees and expenses incurred in defending the action to be paid jointly and severally by plaintiff and his counsel, and held the matter in abeyance pending a report of a Special Referee on the issue of attorneys' fees and expenses, unanimously affirmed, with costs. Appeal from the prior order unanimously dismissed, without costs, as subsumed in the appeal from the subsequent order.

Plaintiff brought the instant action for fraud, defamation, and prima facie tort alleging that defendant's testimony and/or submission of affidavits as an expert witness in three prior medical malpractice actions against plaintiff herein were knowingly false when made. The court gave plaintiff and his counsel time to consider whether to withdraw the complaint in light of the absolute immunity from suits like this afforded counsel, witnesses, and parties in civil judicial proceedings, and provided plaintiff's counsel with relevant case law articulating this general, well-established principle, including Toker v. Pollak, 44 N.Y.2d 211, 405 N.Y.S.2d 1, 376 N.E.2d 163 [1978] and Mosesson v. Jacob D. Fuchsberg Law Firm, 257 A.D.2d 381, 683 N.Y.S.2d 88 [1999], lv. denied 93 N.Y.2d 808, 691 N.Y.S.2d 382, 713 N.E.2d 417 [1999] ( see also Biegeleisen v. Jacobson, 198 A.D.2d 57, 603 N.Y.S.2d 148 [1993], lv. denied 83 N.Y.2d 754, 612 N.Y.S.2d 378, 634 N.E.2d 979 [1994], cert. denied 513 U.S. 874, 115 S.Ct. 200, 513 U.S. 874 [1994] [does not avail plaintiff, who was a defendant in a prior medical malpractice action, to argue that certain statements made by defendant as an expert witness in the prior action were perjurious, unless statements were "so obviously irrelevant as to warrant an inference of express malice" (internal quotation marks omitted) ] ). Plaintiff and his counsel, however, declined to withdraw the complaint, whereupon the court dismissed it and directed a hearing on sanctions. Plaintiff's counsel then sought reargument, relying on Newin Corp. v. Hartford Acc. & Indem. Co., 37 N.Y.2d 211, 371 N.Y.S.2d 884, 333...