| Viehl v Doran Group |
| 2014 NY Slip Op 04002 [118 AD3d 695] |
| June 4, 2014 |
| Appellate Division, Second Department |
[*1]
| Michelle Fassino Viehl, Plaintiff, v DoranGroup et al., Defendants, and Mildred Didio, Esq., et al., Respondents. Traub LiebermanStraus & Shrewsberry LLP, Nonparty Appellant. |
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Jonathan R.Harwood of counsel), nonparty appellant pro se.
In an action, inter alia, to recover damages for fraud, nonparty Traub LiebermanStraus & Shrewsberry LLP appeals from an order of the Supreme Court,Westchester County (Connolly, J.), entered August 28, 2012, which denied its motion, ineffect, for leave to renew its prior motion to withdraw as counsel for the defendantsMildred C. Didio and HV Abstract, which was denied in an order of the same court(Lefkowitz, J.), dated January 23, 2012.
Ordered that the order entered August 28, 2012, is affirmed, without costs ordisbursements.
The appellant, nonparty Traub Lieberman Straus & Shrewsberry LLP(hereinafter Traub Lieberman), was retained by American Guarantee & LiabilityInsurance Company (hereinafter American Guarantee), the liability insurance carrier forthe defendant Mildred Didio, to represent Didio and the defendant HV Abstract in thisaction, which was commenced in August 2008. In a letter dated November 16, 2011,American Guarantee advised Didio that it was disclaiming coverage and that, effectiveNovember 15, 2011, it would no longer pay any defense costs incurred by her in thisaction. After Didio subsequently refused Traub Lieberman's request that she personallypay for her defense costs, Traub Lieberman moved to withdraw as counsel. That motionwas denied in an order of the Supreme Court, Westchester County (Lefkowitz, J.), datedJanuary 23, 2012. Approximately five months later, Traub Lieberman made a secondmotion to withdraw as counsel. In an order entered August 28, 2012, the Supreme Court(Connolly, J.) denied the motion.
Initially, we regard Traub Lieberman's second motion as one for leave to renew. Amotion for leave to renew shall be based, inter alia, on new facts not offered on the priormotion that would change the prior determination, and shall contain reasonablejustification for the failure to present such facts on the prior motion (see CPLR2221 [e]; Koeppel-Vulpis vLucente, 110 AD3d 851, 852 [2013]; Eskenazi v Mackoul, 92 AD3d 828, 828-829 [2012]). Here,Traub Lieberman failed to set forth new facts which would warrant a change in theSupreme Court's prior determination that Traub Lieberman's motion to withdraw ascounsel was an improper attempt to test the propriety of the disclaimer of coverage byAmerican Guarantee (see Pryer v DeMatteis Orgs., 259 AD2d 476, 477 [1999];[*2]Garcia v Zito, 242 AD2d 258, 259 [1997]).Accordingly, the Supreme Court properly denied Traub Lieberman's motion, in effect,for leave to renew. Mastro, J.P., Roman, Hinds-Radix and LaSalle, JJ., concur. [PriorCase History: 36 Misc 3d 1220(A), 2012 NY Slip Op 51408(U).]