| Matter of Nazario v Ciafone |
| 2009 NY Slip Op 06691 [65 AD3d 1240] |
| September 22, 2009 |
| Appellate Division, Second Department |
| In the Matter of Lisa Nazario, Respondent, v John J.Ciafone, Appellant. |
—[*1] Ferro, Kuba, Mangano, Sklyar, P.C., New York, N.Y. (Michael N. Manolakis of counsel),for respondent.
In a proceeding to compel John J. Ciafone to turn over the petitioner's file to the petitioner'snew attorney and for an award of costs and the imposition of sanctions pursuant to 22 NYCRR130-1.1, the petitioner's former attorney John J. Ciafone appeals from an order of the SupremeCourt, Queens County (Satterfield, J.), dated January 8, 2008, which granted the petition.
Ordered that the order is affirmed, with costs.
In support of that branch of the petition which was to compel the appellant to turn over thepetitioner's file to her new attorney, the petitioner presented proof that on January 25, 2007 theappellant received her letter discharging him as her attorney and requesting him to turn over herfile. In opposition, the appellant submitted his affirmation in support of his claims that thepetitioner had given him more time to work on her file and that he had a common-law retaininglien on the file to secure his right to reimbursement of disbursements (see Lai Ling Cheng vModansky Leasing Co., 73 NY2d 454, 457-459 [1989]; Lelekakis v Kamamis, 8 AD3d 630 [2004]; Lansky v Easow,304 AD2d 533 [2003]; Landy v Jacobs, 284 AD2d 432 [2001]). The appellant is aparty to this proceeding; therefore, his submission of an affirmation rather than an affidavit wasinsufficient to oppose the petition because it was not in admissible form (see CPLR2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799, 801 n [1981]; Pisacreta vMinniti, 265 AD2d 540 [1999]; Lauer v Rapp, 190 AD2d 778 [1993]). Furthermore,he failed to submit any proof demonstrating that he had earned any fee or was entitled to recoverany disbursements that had been paid prior to the effective date of the discharge (cf. Lelekakis v Kamamis, 8 AD3d630 [2004]; Lansky v Easow, 304 AD2d 533 [2003]; Security Credit Sys. vPerfetto, 242 AD2d 871 [1997]; Roskind v Brown, 29 AD2d 549, 550 [1967]).Accordingly, the court properly granted that branch of the petition which was to compel theappellant to turn over the petitioner's file to her new attorney without holding an expeditedhearing, since the appellant's papers in opposition failed to raise an issue of fact regarding aretaining lien for disbursements.
Furthermore, the court providently exercised its discretion in granting that branch of thepetition which was pursuant to 22 NYCRR 130-1.1 for an award of costs and the imposition ofsanctions [*2]against the appellant. Contrary to the appellant'scontention, since the petitioner expressly requested the subject relief in her motion papers, andthe appellant was afforded an opportunity to be heard and to oppose the motion, a hearing wasnot required (see 22 NYCRR 130-1.1 [d]; Matter of Minister, Elders & Deacons ofRefm. Prot. Dutch Church of City of N.Y. v 198 Broadway, 76 NY2d 411, 413 n [1990]; Matter of Balsamo, 55 AD3d 905,906 [2008]; Wesche v Wesche, 51AD3d 909, 910 [2008]; RCNConstr. Corp. v Fleet Bank, N.A., 34 AD3d 776 [2006]). Spolzino, J.P., Santucci,Angiolillo, Leventhal and Lott, JJ., concur. [See 2008 NY Slip Op 30140(U).]