Hayden v. Vevante

• Decision Date: 29 January 2020
• Docket Number: Index No. 12852/12,2018–10552
• Citation: Hayden v. Vevante, 179 A.D.3d 1032, 118 N.Y.S.3d 202 (N.Y. App. Div. 2020)
• Parties: Daniel HAYDEN, Plaintiff, v. F.T. VEVANTE III, et al., Defendants; Shapiro & Coleman, P.C., nonparty-Appellant, v. Harrison Law Group, P.C., et al., nonparty-Respondents.
• Court: New York Supreme Court — Appellate Division

179 A.D.3d 1032

118 N.Y.S.3d 202

Daniel HAYDEN, Plaintiff,

v.F.T. VEVANTE III, et al., Defendants;

Shapiro & Coleman, P.C., nonparty-Appellant,

v.Harrison Law Group, P.C., et al., nonparty-Respondents.

2018–10552

Index No. 12852/12

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

Argued - October 29, 2019

January 29, 2020

Edelstein & Grossman, New York, N.Y. (Jonathan I. Edelstein of counsel), for nonparty-appellant.

Arnold E. DiJoseph, P.C., New York, NY, for nonparty-respondents.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, nonparty Shapiro & Coleman, P.C., the plaintiff's current attorneys, appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), dated July 6, 2018. The order, insofar as appealed from, denied the cross motion of Shapiro & Coleman, P.C., pursuant to CPLR 5015(a)(1) to vacate an order of the same court dated October 24, 2017, which, upon granting that branch of the motion of nonparty Cavalier & Associates, P.C., the plaintiff's former attorneys, which was for an allocation of attorneys' fees, determined, upon the failure of Shapiro & Coleman, P.C., to appear and proceed at the hearing to determine the apportionment of attorneys' fees, without a hearing, that Cavalier & Associates, P.C., was entitled to 20% of the attorneys' fees recoverable in the action, that Shapiro & Coleman, P.C., was entitled to 40% of the attorneys' fees, and that nonparty Harrison Law Group, P.C., the plaintiff's former attorneys, was entitled to 40% of the attorneys' fees.

ORDERED that the order dated July 6, 2018, is affirmed insofar as appealed from, with costs.

On December 14, 2010, the plaintiff was injured in a motor vehicle accident. In October 2012, nonparty Cavalier & Associates, P.C. (hereinafter Cavalier), commenced this personal injury action on behalf of the plaintiff. In March 2015, nonparty Harrison Law Group, P.C. (hereinafter Harrison), was substituted as the plaintiff's counsel. In October 2016, nonparty Shapiro & Coleman, P.C. (hereinafter the Shapiro firm), was substituted as the plaintiff's counsel. On April 11, 2017, after mediation, a settlement in the sum of $725,000 was reached before trial, resulting in attorneys' fees in the sum of $241,666.58. On April 25, 2017, Richard H. Coleman of the Shapiro firm disbursed to himself an attorney's fee in the amount of $120,000 from the settlement funds.

By order to show cause dated May 4, 2017, Cavalier moved, inter alia, for a hearing to determine the apportionment of the attorneys' fees recoverable between it, the Shapiro firm, and Harrison. The Shapiro firm cross-moved for a determination that Cavalier was not entitled to any attorneys' fees based, inter alia, upon Cavalier's alleged termination for cause. By order dated August 16, 2017, the Supreme Court, inter alia, set the matter down for a hearing to determine the apportionment of the attorneys' fees, and scheduled the matter to appear on the calendar of the Central Compliance Part (hereinafter CCP) on October 23, 2017. The order provided that "[t]he failure to file a note of issue or appear as directed may be deemed an abandonment of the claims giving rise to the hearing." On October 23, 2017, Coleman failed to appear for the scheduled evidentiary hearing, never advising the court or his adversaries of any need for an adjournment, and instead sent a per diem attorney on his behalf purportedly to seek an adjournment and obtain the new court date. When the court indicated that it might hold the Shapiro firm in default, the per diem attorney, after speaking to Coleman, requested an adjournment. The court granted a one-day adjournment and warned that the Shapiro firm would be held in default if Coleman or someone on his behalf did not appear ready to proceed the next day. On October 24, 2017, Coleman sent another per diem attorney on his behalf only to obtain a two-week adjournment. In an order of that date, the court held the Shapiro firm in default and determined that Cavalier was entitled to 20% of the attorneys' fees, that the Shapiro firm was entitled to 40% of the attorneys' fees, and that Harrison was entitled to 40% of the attorneys' fees.

By order to show cause dated November 30, 2017, Harrison moved to compel the Shapiro firm to distribute to Harrison and Cavalier their proportionate shares of the attorneys' fees. Cavalier joined in Harrison's motion. The Shapiro firm cross-moved pursuant to CPLR 5015(a)(1) to vacate the order dated October 24, 2017. By order dated July 6, 2018, the Supreme Court granted Harrison's motion to the extent of awarding judgment in favor of Harrison in the sum of $96,666.66 and in favor of Cavalier in the sum of $48,333.33, and denied the Shapiro firm's cross motion. The Shapiro firm appeals.

In seeking to vacate its default in appearing or proceeding at the hearing, the Shapiro firm was required to establish both a reasonable excuse for its default and a potentially meritorious case (see CPLR 5015[a][1] ; Crevecoeur v. Mattam, 172...