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Regina Farage v. Ellen Bloom (N.Y.App.Term 03/01/2013)

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York


March 1, 2013

REGINA FARAGE, APPELLANT,
v.
ELLEN BLOOM, DEFENDANT. LAW OFFICE OF MAURICE CHAYT, P.C. AND MAURICE CHAYT, ESQ., NONPARTY-RESPONDENTS.

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered May 25, 2010.

Farage v Bloom

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2013

PRESENT: WESTON, J.P., ALIOTTA and SOLOMON, JJ

The order, insofar as appealed from, granted a motion by nonparties Law Office of Maurice Chayt, P.C. and Maurice Chayt, Esq., to withdraw as counsel for plaintiff, and granted the branch of plaintiff's cross motion seeking to discharge those nonparties for cause, only to the extent of severing the relationship between plaintiff and those nonparties.

ORDERED that the appeal is dismissed as moot.

Plaintiff commenced this personal injury action arising out of a 2002 motor vehicle accident, alleging that defendant's automobile had rear-ended her automobile, causing her serious physical injury. At the time of the commencement of the action, plaintiff was represented by Lance Ehrenberg, Esq. After a stipulation of settlement was entered into in November 2006, plaintiff retained nonparties Law Office of Maurice Chayt, P.C. and Maurice Chayt, Esq. to vacate the stipulation of settlement, which, plaintiff contended, had been fraudulently obtained by Mr. Ehrenberg and defense counsel. In late 2008, a three-day hearing was held before J.H.O. Seymour Schwartz, who rendered a report dated June 3, 2009, finding that plaintiff had failed to sustain her burden of proving that the stipulation of settlement had been the product of fraud or mistake. Thereafter, plaintiff moved to disaffirm the J.H.O.'s report and sought leave to reargue her motion to vacate the stipulation of settlement. Defendant and Mr. Ehrenberg separately cross-moved to confirm the report and to impose sanctions upon plaintiff. By order dated October 29, 2009 and entered November 27, 2009, the Civil Court (Peter Paul Sweeney, J.) denied plaintiff's motion to disaffirm the report and to set aside the stipulation of settlement, and granted so much of the cross motions as sought to confirm the report.

Subsequently, nonparties Law Office of Maurice Chayt, P.C. and Maurice Chayt, Esq. moved by order to show cause to withdraw as counsel to plaintiff. Plaintiff cross- moved for, among other things, an order discharging these nonparties "for just cause, breach of contract and fiduciary duty, fraud, abandonment and negligence," and the nonparties opposed the cross motion. By order entered May 25, 2010, insofar as appealed from, the Civil Court, finding that the moving papers had demonstrated "that the plaintiff and counsel no longer wish to continue their attorney client relationship," granted the motion of nonparties Law Office of Maurice Chayt, P.C. and Maurice Chayt, Esq., to withdraw as counsel for plaintiff, and granted the branch of plaintiff's cross motion seeking to discharge those nonparties as counsel for plaintiff, only to the extent of severing the relationship between attorney and client, thus deferring a determination regarding whether the nonparties should be discharged for cause.

On appeal, plaintiff contends, among other things, that the Civil Court erred in failing to address the issue of whether the nonparties should be discharged for cause. The nonparties note, among other things, that the issue of compensation has now been determined in a small claims action commenced by The Law Offices of Maurice Chayt against Ms. Farage in the Civil Court of the City of New York, Queens County. In that action, the Civil Court (Genine D. Edwards, J.), after a non-jury trial, entered a judgment on November 22, 2010, awarding Law Offices of Maurice Chayt the principal sum of $4,349.75, representing the legal fees which remained due for its representation in the instant action, and dismissed Ms. Farage's breach of contract counterclaim seeking $5,000. This court is permitted to take judicial notice of undisputed court records and files, including the judgment in the small claims case (see Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Matter of Allen v Strough, 301 AD2d 11, 18 [2002]; Ptasznik v Schultz, 247 AD2d 197 [1998]).

CCA 1808 provides that a small claims judgment "shall not be deemed an adjudication of any fact at issue or found therein in any other action or court; except that a subsequent judgment obtained in another action or court involving the same facts, issues and parties shall be reduced by the amount of a judgment awarded under this article." This court has held that this provision does not divest the small claims judgment of its "claim preclusion" effect (which is the more technical meaning of "res judicata") but rather divests the small claims judgment only of its "issue preclusion" use, (otherwise known as "collateral estoppel"), which is a subset of "res judicata" (see Gerstman v Fountain Terrace Owners Corp., 31 Misc 3d 148[A], 2011 NY Slip Op 50988[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Omara v Polise, 163 Misc 2d 989 [App Term, 2d & 11th Jud Dists 1995]).

As the small claims judgment is res judicata, the issue of whether plaintiff should be able to discharge the Chayt firm for cause is now moot. Accordingly, the appeal from the May 25, 2010 order of the Civil Court is dismissed.

Weston, J.P., Aliotta and Solomon, JJ., concur. Decision Date: March 01, 2013

20130301

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