Opinion
9409N Index 159576/14
05-23-2019
Paul J. NAPOLI, Plaintiff–Respondent, v. Marc J. BERN, Defendant–Appellant.
Law Offices of Michael S. Ross, New York (Michael S. Ross of counsel), and Robert & Robert PLLC, Uniondale (Clifford S. Robert of counsel), for appellant. Quinn Emmanuel Urquhart & Sullivan, LLP, New York (Luke Nikas of counsel), for respondent.
Law Offices of Michael S. Ross, New York (Michael S. Ross of counsel), and Robert & Robert PLLC, Uniondale (Clifford S. Robert of counsel), for appellant.
Quinn Emmanuel Urquhart & Sullivan, LLP, New York (Luke Nikas of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Moulton, JJ.
Order, Supreme Court, New York County (Mark C. Zauderer, Referee), entered August 22, 2017, which denied defendant's motion to disqualify the Referee, unanimously affirmed, with costs.
The Referee did not abuse his discretion in finding that his impartiality would not be reasonably questioned such that he should recuse himself from this matter ( 22 NYCRR 100.3 [E][1]; People v. Moreno, 70 N.Y.2d 403, 405–407, 521 N.Y.S.2d 663, 516 N.E.2d 200 [1987] ; R & R Capital LLC v. Merritt, 56 A.D.3d 370, 868 N.Y.S.2d 183 [1st Dept. 2008] ). The Referee notified the parties that he was withdrawing as counsel for a law firm in an unrelated matter "effective immediately" before plaintiff's new counsel, an attorney at said firm, even filed his notice of appearance. Defendant points to no credible evidence, such as adverse rulings or other actions evidencing the alleged judicial bias (see R & R Capital, LLC, at 370, 868 N.Y.S.2d 183 ).
Furthermore, as part of the settlement agreement naming Zauderer, an attorney with an active private practice, as Referee in this action winding up the parties' legacy firm, the parties explicitly agreed to waive any such conflict.
We have considered defendant's remaining contentions and find them unavailing.