| Galasso, Langione & Botter, LLP v Galasso |
| 2011 NY Slip Op 08326 [89 AD3d 897] |
| November 15, 2011 |
| Appellate Division, Second Department |
| Galasso, Langione & Botter, LLP, Formerly Known as Galasso,Langione, LLP, Respondent, v Anthony P. Galasso et al., Defendants. Thomas F. Liotti,Nonparty Appellant. (Action No. 1.) Signature Bank, Plaintiff, v Galasso, Langione & Botter et al.,Defendants. (Action No. 2.) Galasso, Langione & Botter, LLP, Respondent, et al., Plaintiffs, vSignature Bank et al., Defendants. Thomas F. Liotti, Nonparty Appellant. (Action No. 3.) WendyBaron et al., Plaintiffs, v Anthony Galasso et al., Defendants, and Galasso, Langione & Botter, LLP,Respondent. Thomas F. Liotti, Nonparty Appellant. (Action No. 4.) |
—[*1] Mark E. Goidell, Garden City, N.Y., for respondent.
In related actions, inter alia, to recover damages for negligence, breach of contract, anddefamation, nonparty Thomas F. Liotti appeals from an order of the Supreme Court, Nassau County(Warshawsky, J.), dated January 20, 2010, which granted the motion of Galasso, Langione & Botter,LLP, the plaintiff in action No. 1, a plaintiff in action No. 3, and a defendant in action No. 4, to confirmthe report of a referee dated September 30, 2009, recommending the imposition of a sanction upon himin the amount of $6,553.75, and denied his cross motion to reject the report.
Ordered that the order is affirmed, with costs.
Peter Galasso, a partner in the law firm Galasso, Langione & Botter, LLP (hereinafter GLB),represented Stephen Baron in his divorce. Baron designated GLB as his escrow agent in June 2004,and instructed it to hold almost $5 million in an escrow account. Peter's brother, Anthony P. Galasso(hereinafter Anthony), was GLB's bookkeeper. In January 2007 Anthony confessed that [*2]he had stolen approximately $4.4 million from the escrow account.Nonparty Thomas F. Liotti is a criminal defense attorney who represented Anthony in the criminalproceeding prosecuted against him in connection with the theft. Following Anthony's arraignment, Liottimade a statement to a reporter, which was published in Newsday, accusing the attorneys at GLB ofstealing money from their clients' accounts. An action alleging defamation ensued (see Galasso, Langione & Botter, LLP vLiotti, 81 AD3d 880 [2011]). Liotti moved to consolidate the defamation action against himwith a commercial action in which Anthony was a defendant. In an order dated February 6, 2009, theSupreme Court denied the motion, and imposed sanctions on Liotti. This Court affirmed (see Galasso, Langione & Botter, LLP vGalasso, 81 AD3d 879 [2011]).
In the order denying Liotti's motion to consolidate, the Supreme Court also referred the matter to areferee to hear and report on the issue of the amount of the appropriate award of an attorney's fee andcosts against Liotti. After a hearing, the referee recommended that GLB was entitled to a total award inthe sum of $6,553.75. GLB moved to confirm the referee's report. Liotti cross-moved to reject thereport. In an order dated January 20, 2010, the Supreme Court granted GLB's motion to confirm thereport, and denied Liotti's cross motion. We affirm.
Although the court is entitled to reject the report of a referee and make new findings (seeCPLR 4403; Stein v American Mtge. Banking, 216 AD2d 458 [1995]), the report andrecommendations of a referee should be confirmed if his or her findings are supported by the record(see Sichel v Polak, 36 AD3d 416[2007]; Baker v Kohler, 28 AD3d375 [2006]). The credibility determination of a referee's report are entitled to deference on appeal,since the referee had the opportunity to see and hear the witnesses (see Contarino v North Shore Univ. Hosp. atGlen Cove, 13 AD3d 571 [2004]; Anonymous v Anonymous, 289 AD2d 106, 107[2001]; Slater v Links at N. Hills, 262 AD2d 299 [1999]). Further, "[t]he determination of areasonable attorney's fee is generally left to the discretion of the Supreme Court, which is usually in thebest position to determine the factors integral to determining reasonable fees" (Utica Mut. Ins. Co. v Magwood Enters.,Inc., 15 AD3d 471, 472 [2005]).
Here, the Supreme Court properly confirmed the referee's report. GLB's attorney testified that hehad practiced law for 26 years, and usually charged $375 per hour. Because of his close relationship toGLB, he only charged $325 per hour to respond to Liotti's motion. According to the time records ofGLB's attorney, which were entered into evidence, GLB's attorney spent 19.75 hours on the matter,resulting in a fee of $6,418.75, plus disbursements in the sum of $135, for a total of $6,553.75. Liottigave the referee no reason to question either the attorney's credibility, or the authenticity of thedocuments entered into evidence. Indeed, as the Supreme Court stated, Liotti's opposition to themotion to confirm was based on "an ad hominem attack on the Referee, which is totally inappropriate,"and "comments on the qualifications of the Justices before whom this and the defamation matter arepending."
Liotti's remaining contentions are not properly before this Court. Rivera, J.P., Florio, Dickersonand Lott, JJ., concur.