Matter of New York Rezulin Prods. Liab. Litig. v Pfizer, Inc.

Matter of New York Rezulin Prods. Liab. Litig. 2009 NY Slip Op 07496 [66 AD3d 560] October 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 9, 2009

In the Matter of New York Rezulin Products Liability Litigation. William Andrews et al., Plaintiffs,
v
Pfizer, Inc., et al., Defendants. Girardi/Keese, Nonparty Appellant; Duffy, Duffy & Burdo, Esq., Nonparty Respondent.

—[*1] Hinshaw & Culbertson LLP, New York (Schuyler B. Kraus of counsel), for appellant.

Robert & Robert, PLLC, Melville (Clifford S. Robert of counsel), for respondent.

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered June 19, 2008, in favor of nonparty Duffy, Duffy & Burdo, Esqs. (Duffy) and against nonparty Girardi/Keese (Girardi) in the sum of $1,261,521.18, unanimously affirmed, without costs.

There is no basis to disturb the court's determination in favor of Duffy (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]). At the hearing, Girardi called no witnesses on its own behalf to contradict the testimony of Duffy's witnesses as to the existence of an oral one-third fee arrangement between the two firms. The court properly declined to consider affidavits by a witness who was not available for cross-examination in court (see Seinfeld v Robinson, 300 AD2d 208 [2002]). [*2]

We have considered Girardi's remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Mazzarelli, Sweeny, Renwick and Richter, JJ.