Medina v. Millwood Mkt., LLC

Medina v Millwood Mkt., LLC (2021 NY Slip Op 06048)

Medina v Millwood Mkt., LLC

2021 NY Slip Op 06048

Decided on November 04, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 04, 2021
Before: Gische, J.P., Mazzarelli, Shulman, Pitt, Higgitt, JJ.

Index No. 309640/10 Appeal No. 14542-14542A Case No. 2020-04391 2021-01903 2021-01930

[*1]Corpo Medina, Plaintiff,

v

Millwood Market, LLC, et al., Defendants.



Ross Legan Rosenberg Zelen and Flaks, LLP, Nonparty Plaintiff-Appellant,

v

Philip Newman, P.C., Nonparty Defendant-Respondent.

Ross Legan Rosenberg Zelen & Flaks, LLP, New York (Michael Flaks of counsel), for appellant.

Paul Bibuld, Bronx, for respondent.

Judgment, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered April 27, 2021, in favor of Philip Newman, P.C., outgoing counsel for plaintiff, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about October 2, 2020, which allocated 20% of plaintiff's counsel fees to Philip Newman, P.C. and 80% to incoming counsel Ross Legan Rosenberg Zelen & Flaks, LLP, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Supreme Court correctly found that outgoing counsel was not discharged for cause. Incoming counsel's arguments on this issue either put form over substance or amount to a difference of opinion concerning strategy (see generally Costello v Kiaer, 278 AD2d 50 [1st Dept 2000]). The court also providently exercised its discretion in allocating the fees (see e.g. Rivera v Walter, 122 AD3d 442, 442-43 [1st Dept 2014]; Garrett v New York City Health & Hosps. Corp., 25 AD3d 424 [1st Dept 2006]; Diakrousis v Maganga, 61 AD3d 469, 469 [1st Dept 2009]; Martin v Feltingoff, 7 AD3d 467 [1st Dept 2004], lv denied 3 NY3d 608 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 4, 2021