| Aaron v Pattison, Sampson, Ginsberg & Griffin, P.C. |
| 2010 NY Slip Op 00342 [69 AD3d 1084] |
| January 14, 2010 |
| Appellate Division, Third Department |
| Steven L. Aaron, Appellant, v Pattison, Sampson,Ginsberg & Griffin, P.C., Respondent. (Action No. 1.) Pattison, Sampson, Ginsberg & Griffin,P.C., Respondent, v Steven L. Aaron et al., Appellants, et al., Defendants. (Action No. 2.)Pattison, Sampson, Ginsberg & Griffin, P.C., Respondent, v Steven L. Aaron et al., Appellants.(Action No. 3.) |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, Albany (Douglas R. Kemp of counsel), forrespondent in action No. 1. Pattison, Sampson, Ginsberg & Griffin, P.C. (Jonathan G. Schopf of counsel), for respondentin actions Nos. 2 and 3.
Cardona, P.J. Appeal from an amended order of the Supreme Court (Donohue, J.), enteredFebruary 26, 2009 in Rensselaer County, which, among other things, denied a motion byplaintiff in action No. 1 to compel discovery.
In relation to these three actions,[FN1]Steven L. Aaron, F&K Supply, Inc., and Never More Now Corporation[FN2](hereinafter collectively referred to as Aaron) moved to compel Pattison, Sampson, Ginsberg &Griffin, P.C.[FN3](hereinafter PSGG) to comply with a request for documents primarily concerning attorneyGerald Katzman. PSGG cross-moved for an protective order as to the requested materials andalso sought counsel fees and costs associated with the motions pursuant to 22 NYCRR 130-1.1(a). Supreme Court denied Aaron's motion to compel, partially granted PSGG's cross motion foran protective order, and awarded costs and counsel fees. Aaron appeals.[FN4]
Initially, we find that Aaron substantially complied with 22 NYCRR 202.7 (a) and,accordingly, we consider the motion to compel on the merits. Specifically, Aaron seeksdocuments showing Katzman's time entries and billings related to other client matters;documents showing Katzman's employment contracts, partnership agreements and income;evidence of loans to Katzman by PSGG; evidence of any malpractice suits against Katzman;claims against Katzman made to the Committee on Professional Standards; documents showingKatzman's absences from work, including vacation, personal and sick time; and documentspertaining to Katzman's reviews, disciplinary actions, internal grievances, demotions andpromotions. As Aaron has failed to demonstrate that these materials are in any way material andnecessary to proving a claim of legal malpractice (see AmBase Corp. v Davis Polk &Wardwell, [*2]8 NY3d 428, 434 [2007]) or to defendingagainst PSGG's claims for counsel fees, the motion to compel must be denied (see CPLR3101 [a]). Furthermore, under the same rationale, we find that Supreme Court did not abuse itsdiscretion in granting the protective order (see CPLR 3103 [a]). Nor do we find an abuseof discretion in the award of counsel fees and costs on the motion (see 22 NYCRR130-1.1 [a]). As set forth in the court's amended order, Aaron's motion to compel the productionof the patently immaterial and unnecessary information detailed above was nothing more than a"fishing expedition" made for the "illegitimate purpose" of "uncovering facts supportinginsufficient, conclusory allegations."
Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the amended order is affirmed,with one bill of costs.
Footnote 1: Action No. 1 sounds in legalmalpractice. Action Nos. 2 and 3 seek counsel fees.
Footnote 2: Aaron is the plaintiff in actionNo. 1 and a defendant in action Nos. 2 and 3. F&K Supply is a defendant in action Nos. 2 and 3.Never More Now is a defendant in action No. 2.
Footnote 3: Pattison, Sampson, Ginsberg &Griffin is the defendant in action No. 1 and the plaintiff in action Nos. 2 and 3.
Footnote 4: While an appeal from anintermediate nonfinal order must be dismissed upon entry of a final judgment (see Doherty v Schuyler Hills, Inc., 55AD3d 1174, 1175 [2008]), the amended order appealed from here is a final order and,therefore, contrary to PSGG's contention, the right of direct appeal did not terminate upon entryof the judgments (see Bright vMcGowan, 63 AD3d 1239, 1240 n 1 [2009]).