Ferdico v. Zweig

• Decision Date: 29 March 2011
• Citation: 919 N.Y.S.2d 521,82 A.D.3d 1151,2011 N.Y. Slip Op. 02621
• Parties: Enrico FERDICO, et al., plaintiffs-respondents,v.Joel ZWEIG, etc., et al., defendants-respondents,Brian Mullen, et al., appellants;Farrell Fritz, P.C., nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

82 A.D.3d 1151

919 N.Y.S.2d 521

2011 N.Y. Slip Op. 02621

Enrico FERDICO, et al., plaintiffs-respondents,

v.Joel ZWEIG, etc., et al., defendants-respondents,Brian Mullen, et al., appellants;Farrell Fritz, P.C., nonparty-respondent.

Supreme Court, Appellate Division, Second Department, New York.

March 29, 2011.

Barry, McTiernan & Moore, New York, N.Y. (Laura A. Wedinger of counsel), for appellants.Cobert, Haber & Haber, LLP, Garden City, N.Y. (Eugene F. Haber of counsel), for plaintiffs-respondents.Farrell Fritz, P.C., Uniondale, N.Y. (James M. Wicks and Franklin C. McRoberts of counsel), nonparty-respondent pro se.JOSEPH COVELLO, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and JEFFREY A. COHEN, JJ.

In an action, inter alia, for specific performance of a contract for the sale of real property, the defendants Brian Mullen and Marybeth Mullen appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Grays, J.), entered January 28, 2010, as granted the motion of nonparty Farrell Fritz, P.C., for leave to withdraw as their counsel of record, and denied those branches of their cross motion which were (a) to vacate a judgment of the same court dated March 11, 2009, which, upon the granting of the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, among other things, directed the defendant Joel Zweig, as executor of the estate of Morris Zweig, to execute a deed conveying the subject real property to the plaintiffs in accordance with the terms of such contract of sale, (b) for leave to renew their motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, (c) for leave to amend their answer to assert a cross claim against the defendant Joel Zweig individually, and (d) to stay all proceedings in a proceeding entitled Estate of Morris Zweig, pending in the Surrogate's Court, New York County, pending a determination of the instant action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The Supreme Court providently exercised its discretion in denying that branch of the cross motion of the defendants Brian Mullen and Marybeth Mullen (hereinafter together the Mullens) which was to vacate a judgment dated March 11, 2009, pursuant to CPLR 5015(a)(2). The Mullens failed to establish, inter alia, that the purportedly newly discovered evidence, a report of an alleged handwriting expert concluding that the alleged signature of Morris Zweig on a contract of sale dated July 15, 2004, that had been attached as an exhibit to the plaintiffs' complaint was a forgery, could not have been discovered earlier through the exercise of due diligence ( see Sicurelli v. Sicurelli, 73 A.D.3d 735, 901 N.Y.S.2d 305; Vogelgesang v. Vogelgesang, 71 A.D.3d 1132, 1133–1134, 899 N.Y.S.2d 272; Sieger v. Sieger, 51 A.D.3d 1004, 1005, 859 N.Y.S.2d 240; Matter of State Farm Ins. Co. v. Colangelo, 44 A.D.3d 868, 843 N.Y.S.2d 667). The Supreme Court also properly denied that branch of the Mullens' cross motion which was to vacate the judgment dated March 11, 2009, pursuant to CPLR 5015(a)(3), as they failed to establish that the judgment was procured as a result of fraud, misrepresentation, or other improper conduct ( see Matter of Johnson v. New York City Dept. of Educ., 73 A.D.3d 927, 928, 900 N.Y.S.2d 737; Sicurelli v. Sicurelli, 73 A.D.3d 735, 901 N.Y.S.2d 305; Matter of Tellez, 56 A.D.3d 678, 871 N.Y.S.2d 153).

The Supreme Court also properly denied that branch of the Mullens' cross motion which was to renew their motion for summary judgment dismissing the complaint insofar as asserted against them and their opposition to the plaintiffs' motion for summary judgment on the first cause of action for specific performance of the contract of sale dated July 15, 2004, as they failed to set forth both “new facts not offered on the prior motion[s] that would change the prior determination” and a “reasonable justification for the failure to present such facts on the prior motion[s]” (CPLR 2221[e][2], [3]; see Bank of Am., N.A., USA v. Friedman, 44 A.D.3d 696, 842 N.Y.S.2d 721; Yarde v. New York City Tr. Auth., 4 A.D.3d 352, 353, 771 N.Y.S.2d 185; Johnson v. Marquez, 2 A.D.3d 786, 788–789, 770 N.Y.S.2d 377; Riccio v. DePeralta, 274 A.D.2d 384, 711 N.Y.S.2d 17). The Mullens failed to set forth a reasonable justification as to why they did not previously obtain the report of their alleged handwriting expert in time to submit it in support of their original cross motion or in opposition to the plaintiffs' original motion, given that the contract of sale analyzed by their alleged expert was attached as an exhibit to the complaint in the instant action.

A lawyer may withdraw from representing a client if the client, by his or her conduct, “insists upon taking action with which the lawyer has a fundamental disagreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[c][4] ) or the client “renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional...