Melcher v. Apollo Medical Fund Management L.L.C.

• Decision Date: 05 June 2008
• Docket Number: 3824.,3824A.,3823.,3820.,3822.,3821.,3824B.
• Parties: JAMES L. MELCHER, Appellant, v. APOLLO MEDICAL FUND MANAGEMENT L.L.C. et al., Respondents.
• Court: New York Supreme Court — Appellate Division

52 A.D.3d 244

859 N.Y.S.2d 160

2008 NY Slip Op 05001

JAMES L. MELCHER, Appellant, v. APOLLO MEDICAL FUND MANAGEMENT L.L.C. et al., Respondents.

3820.

3821.

3822.

3823.

3824.

3824A.

3824B.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided June 5, 2008.

Orders, Supreme Court, New York County (Herman Cahn, J.), entered August 23, September 20, November 19 (two orders) and December 12, 2007, which denied plaintiff's motions, respectively, to stay the trial and strike the note of issue, to strike the answer as a spoliation sanction and grant a default judgment, for recusal, to disqualify defendants' trial counsel, and to strike the answer for alleged deceit by defendant Fradd and his counsel, and order, same court and Justice, entered October 22, 2007, which granted defendants' motion to quash plaintiff's subpoenas of their attorneys, unanimously affirmed, without costs. [See 2007 NY Slip Op 33802(U).]

Order, same court and Justice, entered December 14, 2007, which denied plaintiff's motion to vacate an oral directive to clone the hard drives of his business and personal computers, unanimously reversed, on the law and the facts, without costs, and the motion granted.

The court properly declined to recuse itself based on its son's employment as a new associate in the corporate department of the large law firm representing defendants in this litigation (see Faith Temple Church v Town of Brighton, 348 F Supp 2d 18 [2004]). The court had presided over the litigation for three years, had decided numerous motions, and had directed the filing of a note of issue, distinguishing this case from another in which the court had granted a recusal motion when the case was still in its infancy.

Deceit warranting the striking of the answer was not conclusively demonstrated (see 317 W. 87 Assoc. v Dannenberg, 159 AD2d 245 [1990]). Whether the destruction of evidence was intentional or merely negligent presents an issue for the trier of fact (see Taieb v Hilton Hotels Corp., 131 AD2d 257, 263 [1987], appeal dismissed 72 NY2d 1040 [1988]), and plaintiff failed to establish that without the evidence he would be unable to prove his case (see Positive Influence Fashions, Inc. v Seneca Ins. Co., 43 AD3d 796 [2007]; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [2002]).

Plaintiff failed to carry his burden of demonstrating, so as to warrant the disqualification of defendants' trial counsel, either that defendant Fradd's counsel lied (see Code of Professional Responsibility DR 7-102 [12 NYCRR 1200.33]) or that the attorneys' proposed testimony was necessary, since it would have been offered for the collateral purpose of impeachment (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445 [1987]; Talvy v American...