

Napoli v Bern (2019 NY Slip Op 04043)





Napoli v Bern


2019 NY Slip Op 04043


Decided on May 23, 2019


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 on May 23, 2019

Renwick, J.P., Manzanet-Daniels, Kahn, Moulton, JJ.


9409N 159576/14

[*1] Paul J. Napoli, Plaintiff-Respondent,
vMarc J. Bern, Defendant-Appellant.


Law Offices of Michael S. Ross, New York (Michael S. Ross of counsel), and Robert & Robert PLLC, Uniondale (Clifford S. Robert of counsel), for appellant.
Quinn Emmanuel Urquhart & Sullivan, LLP, New York (Luke Nikas of counsel), for respondent.

Order, Supreme Court, New York County (Mark C. Zauderer, Referee), entered August 22, 2017, which denied defendant's motion to disqualify the Referee, unanimously affirmed, with costs.
The Referee did not abuse his discretion in finding that his impartiality would not be reasonably questioned such that he should recuse himself from this matter (22 NYCRR 100.3[E][1]; People v Moreno, 70 NY2d 403, 405-407 [1987]; R & R Capital LLC v Merritt, 56 AD3d 370 [1st Dept 2008]). The Referee notified the parties that he was withdrawing as counsel for a law firm in an unrelated matter "effective immediately" before plaintiff's new counsel, an attorney at said firm, even filed his notice of appearance. Defendant points to no credible evidence, such as adverse rulings or other actions evidencing the alleged judicial bias (see R & R Capital, LLC at 370).
Furthermore, as part of the settlement agreement naming Zauderer, an attorney with an active private practice, as Referee in this action winding up the parties' legacy firm, the parties explicitly agreed to waive any such conflict.
We have considered defendant's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 23, 2019
CLERK


