CPY Document - Unified Court System

SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
Present:
HON. DANIEL PALMIERI
Acting Justice Supreme Court
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AMERICAN INTERNATIONAL GROUP AND ITS
RELATED COMPANIES, including but not limited
to AIU INSURANCE COMPANY, AMERICAN
HOME ASSURANCE COMPANY, and NEW
HAMPSHIRE INSURANCE COMPANY, NATIONAL
UNION FIRE INSURANCE COMPANY, for an Order
directing the substitution of THE LAW OFFICES OF
BRYAN M. ROTHENBERG in place of THE LAW
OFFICES OF PETER E. FINNING, as attorneys
for the COMPANY of the above named Companies
in all pending actions and proceedings.
SPECIAL TERM
PART II
INDEX NO. : 19970/05
MOTION DATE:2-21-
SUBMIT DATE: 4-11-
SEQ. NUMBER - 001
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The following papers have been read on this motion:
Order To Show Cause, dated 2-17-06............................ 1
Affidavit of Megan L. Brackney, dated 3- 06.................. 2
Affdavit of Robert Palm, dated 3- 06...........................
Affidavit of Robert Zausmer, dated 3- 06......................
Memorandum in Opposition, dated 3- 06.....................
Reply Affirmation, dated 4- 06.............................................
Petitioner s application for modification of an order (the Order) of substitution of attorneys
previously issued on December 23, 2005 on consent, by this Cour (Roberto, J.) is denied.
The Order relieved Peter E. Finning as attorney for the petitioners and substituted Bryan
M. Rothenberg as attorney for petitioners in pending actions against the petitioners and was made

on consent of both Finning, outgoing attorney and Rothenberg, incoming attorney.
The Order provided, as applicable here, that
Finning wil transfer original legal fies unless the original files are
needed in the defense of the Robert Plan Companies in which case
that portion or those portions ofthe legal files must be duplicated at
the expense and manpower of the AIG companies according to the
schedule as per this Order or as otherwise mutually agreed in
writing; "
Rothenberg now moves on behalf of petitioners to amend the above quoted portion of the
Order to provide that the cost of duplication of original legal files "be at the expense and
manpower to be shared equally by Robert Plan and AI G.
The basis for this request is that petitioner has determined that compliance with the Order
wil be costly, although the suggested amount is not supported by any data as to how and by
whom it was determined.
It is evident from the papers submitted on this application that this dispute over fie
copying expenses is par of a larger dispute between the petitioners and the Robert Plan which
has arisen out of an agreement dated Januar 1 , 2002, and which is now the source of litigation
pending in New York County between petitioners and the Robert Plan.
Rothenberg is staff counsel to petitioners and Finning heads a litigation unit for Robert
Plan. Thus, this dispute is not between an outgoing attorney and former client or outgoing and
incoming attorneys but is par of the larger dispute noted above, and the present application thus
invites the Court to become involved in an apparently complex matter which is presently before
another court. This Court declines the invitation.

The purpose of the Order was to effect, by way of a special proceeding (CPLR Ar. 4), a
blanket substitution of attorneys on consent and by stipulation.
CPLR 93 21 (a). This dispute does
not implicate the attorney client relationship, there is no claim for legal fees or expenses incurred
by the attorneys, and there is no dispute as to access to the fies. It thus is not necessar to
determine whether there should be a retaining lien.
See In the Matter of Sage Realty Corporation
v. Proskauer Rose Goetz and Mendelsohn, LLP 91 NY 2d 30 (1997); Security Credit Systems
Inc. v. Perfitto 242 AD2d 871 (4th Dept. 1997).
Moreover, the law affecting stipulations and contracts does not favor the petitioners. A
paries (Silan v.
so ordered stipulation signed by counsel is binding on the City of New York, 300
AD2d 298 (2d Dept. 2002); CPLR 92104), and Rothenberg s new claim that he had no choice
but to agree to the above quoted language regarding the sharing of expenses can hardly rise to the
level of duress. See Marotta v. Dinozzi, 287 AD2d 491 (2d Dept. 2001). The consent which
engendered the Order is a contract subject to principles of contract interpretation , and when its
terms are clear and unambiguous, the Court must determine intent from within the document and
give effect to the language employed. Rainbow v. Swisher 72 NY2d 106 (1988); Howard
Howard, 292 AD2d 345 (2d Dept. 2002).
. A part may be relieved of a stipulation only for reasons such as fraud, collusion, mistake
or accident, and none of those factors are present here. Hallock v. State of New York 64 NY2d
224 (1984); Abdelatif v. Elgammssy, 275 AD2d 432 (2d Dept. 2000); see also Town of
Clarkstown v. MR. O. Pump Tank, Inc. 287 AD2d 496 (2d Dept. 2001) (par need not be
present, if represented by counsel); Bubeck v. Main Urology Associates, P. , 275 AD2d 909 (4th

Dept. 2000) (client may be bound even where stipulation exceeds counsel' s authority if counsel
had apparent authority to enter).
Based on the foregoing, the application to amend the Order is denied.
This shall constitute the Decision and Order of this Court
DATED: April 17, 2006
ENTER
N. DANEL PALMIERI
Acting Supreme Court Justice
ENTERED
TO: Law Offices of Bryan Rothenberg
200 Old Country Road Ste. 500
Mineola, NY 11501
Law Office of Peter Finning
999 Stewar Avenue
Bethpage, NY 11714
APR 1 9 2006
NASSAU COUNTY
COUNlY CLERK'S OFFICE
Kostelanetz & Fink, LLP
By: Megan L. Brackney, Esq.
530 Fifth Avenue, 22 Floor
New York, NY 10036