Albert v. Alpert

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered June 5, 2001, which granted plaintiffs’ motion to confirm the Special Referee’s report dated July 5, 2000, denied defendant Zane Alpert’s cross motion to reject said report, awarded plaintiffs $4,819.50 for legal fees and expenses incurred since October 4, 2000, directed defendant Zane Alpert to pay $77,123 to plaintiffs, and ordered that in the event of the failure of said defendant to make the ordered payment, plaintiffs may apply to the court ex parte for the entry of a money judgment, unanimously affirmed, without costs.

The order on appeal is consistent with the prior order and judgment, affirmed by this Court, in which we found that the motion court had properly found defendant Zane Alpert guilty of contempt and “thereupon appropriately fined [him] pursuant to Judiciary Law § 773 in the amount of the legal fees and expenses incurred by plaintiffs in the contempt proceeding” (261 AD2d 247, lv dismissed 94 NY2d 859). The underlying order had also provided for an additional fine in an amount to be fixed in a subsequent order for plaintiffs’ further legal costs. The challenged provision before us constituted that additional fine and conditionally granting plaintiffs a money judgment in no way removes or lessens any remedy that would have been available to them had that provision not been included in the order.

The cross appeal is without merit. Even if defendant Zane Alpert had not waived his current claim of conflict of interest by failing to raise it in the 11 years of motion and appeal practice that preceded the instant hearing before the Special Referee, and even if there were some basis to grant said defendant’s request for renewal notwithstanding the absence of an explanation for said defendant’s delay in raising the conflict issue, we would find no such violation of a disciplinary rule as to warrant denying counsel fees. The amount of fees and expenses awarded was not excessive. We have considered defendant Zane Alpert’s remaining arguments raised on the cross appeal and find them unavailing. Concur—Tom, J.P., Mazzarelli, Andrias, Ellerin and Rubin, JJ.