        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

648
CA 11-00300
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, GREEN, AND GORSKI, JJ.


KATHLEEN DOODY, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

KENNETH L. GOTTSHALL AND DIANE A. GOTTSHALL,
DEFENDANTS-APPELLANTS.


BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), AND
HAGELIN KENT LLC, FOR DEFENDANTS-APPELLANTS.

CELLINO & BARNES, P.C., ROCHESTER (CHARLES F. BURKWIT OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered April 23, 2010 in a personal injury action.
The order imposed sanctions on defendants.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating that part disqualifying
Hagelin Kent, LLC from representing defendants and as modified the
order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for injuries she sustained when she was struck by a vehicle
operated by defendant Diane A. Gottshall and owned by both defendants.
Following a jury trial on damages, Supreme Court set aside the verdict
and ordered a new trial “on its own initiative . . . in the interest
of justice” based upon the misconduct of defendants’ attorney (CPLR
4404 [a]). In addition, the court disqualified defendants’ attorney
and his firm from representing defendants at the retrial and imposed
upon defendants “the costs incurred in the trial for the live medical
experts consisting of transportation, and time charged, which will
need to be duplicated in the second damages trial.” On a prior
appeal, we modified the order by, inter alia, vacating those parts
disqualifying defendants’ attorney and his law firm and imposing costs
upon defendants on the ground that defendants should have been
afforded a reasonable opportunity to be heard on the issues of
disqualification and costs (Doody v Gottshall, 67 AD3d 1347, 1349).
Following a hearing on those issues, the court, inter alia,
disqualified defendants’ attorney and his law firm from representing
defendants at the retrial and directed defendants to reimburse
plaintiff for the costs incurred for her medical experts at the
retrial.
                                 -2-                           648
                                                         CA 11-00300

      We reject defendants’ contention that the court lacked authority
to conduct the hearing absent an explicit remittal for that purpose on
the prior appeal. Our prior decision contemplated that the court
would not disqualify defendants’ attorney and his law firm or impose
costs upon defendants without affording them a reasonable opportunity
to be heard (id.). Contrary to defendants’ further contention, the
court did not lack authority to conduct the hearing based upon its sua
sponte recusal from the retrial. The court’s recusal was limited to
the retrial and, in any event, it was not required to recuse itself
pursuant to Judiciary Law § 14. Thus, recusal was a matter for the
court’s discretion and the court properly exercised that discretion in
denying defendants’ request that the court recuse itself from the
hearing (see Matter of Rumsey v Niebel, 286 AD2d 564; Matter of Card v
Siragusa, 214 AD2d 1022, 1023). The court also properly exercised its
discretion in determining that disqualification of defendants’
attorney is warranted based upon the attorney’s persistent and
pervasive misconduct during the trial and his failure to recognize or
take responsibility for such misconduct (see generally Matter of Brian
R., 48 AD3d 575; Matter of Moxham v Hannigan, 89 AD2d 300, 302).
Under the circumstances of this case, we conclude that “to impose a
sanction short of disqualification would be to treat the conduct at
issue with a degree of lenity practically inviting its recurrence”
(Matter of Weinberg, 129 AD2d 126, 144, appeal dismissed 71 NY2d 994).
We reach a different conclusion, however, with regard to the
attorney’s law firm. “We discern nothing in the record before us
which justified the sua sponte disqualification of the [defendants’]
law firm from representing [them] in this action,” and we therefore
modify the order accordingly (Bentz v Bentz, 37 AD3d 386, 387; cf.
Weinberg, 129 AD2d at 142-144). With respect to the imposition of
costs, we perceive no “clear abuse of discretion” and thus defer to
the court’s determination (Grozea v Lagoutova, 67 AD3d 611). Finally,
defendants do not challenge that part of the order striking their
answer with respect to liability and the affirmative defense of
comparative negligence, and we therefore deem any challenge with
respect thereto abandoned (see Ciesinski v Town of Aurora, 202 AD2d
984).




Entered:   June 10, 2011                       Patricia L. Morgan
                                               Clerk of the Court
