R&R Capital LLC v Merritt

R&R Capital LLC v Merritt 2010 NY Slip Op 08445 [78 AD3d 533] November 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

R&R Capital LLC et al., Appellants,
v
Linda Merritt, Respondent. Hogan & Hartson, LLP, Intervenor-Appellant.

—[*1] Certilman Balin Adler & Hyman, LLP, East Meadow (Paul B. Sweeney of counsel), for R&R Capital LLC and FTP Capital, LLC, appellants.

Vandenberg & Feliu, LLP, New York (Bertrand C. Sellier of counsel), for Hogan & Hartson, LLP, appellant.

Cozen O'Connor, New York (John B. Galligan of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered April 5, 2010, to the extent appealed from as limited by the briefs, granted, in part, defendant's motion for "clarification," granted, in part, defendant's motion to amend her counterclaims, and, sua sponte, granted leave to defendant to assert counterclaims against plaintiffs and plaintiffs' counsel pursuant to Judiciary Law § 487, unanimously reversed, on the law, with costs, the motion denied, and the matter remanded for trial of the remaining counterclaims before another Justice.

Defendants' proposed new counterclaims alleging a fraud on this Court and a violation of Judiciary Law § 487 plainly lack merit, and therefore should have been rejected (see Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170 [1989]). Prior decisions of this Court have established law of the case that plaintiffs and their counsel had made no misrepresentations or otherwise acted fraudulently, deceptively, or in bad faith in any of the litigations in question (R&R Capital LLC v Merritt, 60 AD3d 528 [2009]; R&R Capital LLC v Merritt, 63 AD3d 565 [2009]). The order on appeal also violates the principles of comity and full faith and credit by revisiting issues decided by Delaware and Pennsylvania courts. Nor is there a viable counterclaim for indemnification since any indemnification rights defendant had were against the LLCs owned by the parties, and, therefore, were within the sole jurisdiction of the Delaware Chancery Court, which has already ruled that plaintiff has no such rights. As plaintiff demonstrates a reasonable concern about the court's appearance of impartiality, we direct that the matter be reassigned to another Justice for trial of the remaining counterclaims (see Crawford v Liz Claiborne, Inc., 45 AD3d 284, 287 [2007], revd on other grounds 11 NY3d 810 [2008]). Concur—Tom, J.P., Andrias, Nardelli, Acosta and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 30778(U).]