Monaghan v. Meade

• Decision Date: 17 January 1983
• Citation: Monaghan v. Meade, 457 N.Y.S.2d 886, 91 A.D.2d 1014 (N.Y. App. Div. 1983)
• Parties: Thomas MONAGHAN et al., Respondents-Appellants, v. Ronald MEADE d/b/a 9W Superette, et al., Defendants; Victor Rossi, Respondent. Levinson, Jenkins and Karger, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 886

457 N.Y.S.2d 886

91 A.D.2d 1014

Thomas MONAGHAN et al., Respondents-Appellants, v.Ronald MEADE d/b/a 9W Superette, et al., DefendantsVictor Rossi, RespondentLevinson, Jenkins and Karger, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Jan. 17, 1983.

Levinson, Jenkins & Karger, Newburgh (Sheila Callahan O'Donnell and Howard Karger, Newburgh, of counsel), appellant-respondentpro se.

Finkelstein, Mauriello, Kaplan & Levine, Newburgh (Benjamin J. Fried, Newburgh, of counsel), for respondents-appellants.

Alio & Schoeffler, Tarrytown (Lynn A. Beesecker, Tarrytown, of counsel), for respondent.

Before MOLLEN, P.J., and TITONE, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., plaintiffs and Levinson, Jenkins and Karger, the law firm assigned to defend defendantRobert Meade d/b/a 9W Superette (Meade), cross-appeal from an order of the Supreme Court, Orange County, dated January 14, 1982, which, upon reargument and renewal of the law firm's application to withdraw as counsel for Meade in the above-entitled matter, directed a hearing to determi whether Meade had failed to co-operate in his defense.

Leave to appeal is granted by Justice TITONE.

Order reversed, on the law, with $50 costs and disbursements payable to plaintiffs by the movant law firm, and said firm's application is denied, without prejudice to the commencement of a declaratory judgment action by the Heritage Mutual Insurance Company.

In this personal injury action stemming from a fall by plaintiffThomas Monaghan while he was on the premises owned, inter alia, by defendantVictor Rossi, and occupied by defendant Meade, the law firm of Levinson, Jenkins and Karger moved to withdraw as attorney of record pursuant to CPLR 321(subd. [b], par. [2] ).The firm is counsel for Meade's insurer, Heritage Mutual Insurance Company, and was assigned to represent Meade in this action.

Plaintiffs commenced the within action by service of a summons and complaint on or about January 3, 1980.Sometime thereafter Heritage assigned its law firm, Levinson, Jenkins and Karger, to represent its insured.The litigation proceeded through the interposing of a defense for Meade by the law firm, and the conducting of examinations before trial.On June 15, 1981 Heritage sent Meade a letter by certified mail in which it disclaimed coverage and informed him that it had advised its law firm to withdraw as his counsel in the action.The carrier contended in the letter that Meade had failed to appear at a number of scheduled examinations before trial and that previously he had only intermittent contact with it.

The application of the firm was initially denied (DACHENHAUSEN, J.), on November 30, 1981 because Meade had not been served with a copy of the moving papers.However, Special Term afforded the firm an opportunity to correct the infirmity by granting it leave to renew the application.On January 14, 1982, after proof was submitted that service of a copy of the moving papers had been made upon Meade's mother on his behalf, Special Term (DACHENHAUSEN, J.), granted the motion of the law firm to withdraw as...