98 A.D.2d 826 | N.Y. App. Div. | 1983
— Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered December 9,1982 in Ulster County, which denied third-party plaintiff’s motion to disqualify third-party defendant from representing any party in the action and granted third-party defendant’s cross motion to dismiss the third-party complaint. Joan Catania retained Barry Lippman to represent her in a matrimonial action and he allegedly advised her to leave her marital residence. Thereafter, but prior to trial of the matrimonial action, William Curran replaced Lippman as Catania’s attorney. Curran moved to compel Lippman to turn the file in Catania’s case over to him and Lippman was ordered to release the file upon payment of $500 by Catania. Before the $500 was paid and the file released, Curran proceeded to trial of the matrimonial action, which resulted in a judgment awarding, inter alia, possession of the marital residence to Catania’s husband. Catania (plaintiff) then commenced this action against Lippman alleging malpractice in advising her to leave the marital residence and claiming that such malpractice resulted in her husband being awarded possession of the house. Lippman (third-party plaintiff) denied the material allegations of the complaint and commenced a third-party action against Curran (third-party defendant), alleging that any damages suffered by plaintiff were caused by third-party defendant proceeding to trial of plaintiff’s matrimonial action without benefit of her file and seeking indemnification or contribution. Third-party plaintiff subsequently moved for an order disqualifying third-party defendant as attorney for any party in the action on the ground that he might be called as a witness. Third-party defendant opposed the motion on the ground that he would not be a witness and further requested dismissal of the third-party complaint. Special Term denied the motion to disqualify third-party defendant and granted the cross motion to dismiss the third-party complaint. Third-party plaintiff appeals. Initially, we note that Special Term properly considered third-party defendant’s cross motion to dismiss the third-party complaint. Although no notice of cross motion was served by third-party defendant as required by CPLR 2215, no prejudice resulted from Special Term hearing the cross motion because (1)