O'Brien v Trooper Fitness LLC

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O'Brien v Trooper Fitness LLC 2017 NY Slip Op 32542(U) December 1, 2017 Supreme Court, New York County Docket Number: 157090/2017 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 12/05/2017 03:21 PM 1] NYSCEF DOC. NO. 26 INDEX NO. 157090/2017 RECEIVED NYSCEF: 12/05/2017 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KATHRYN E. FREED PART 2 --- Justice -------------------------------------------------------------------------------X KRISTEN O'BRIEN, INDEX NO. 157090/2017 Plaintiff, MOTION DATE - vTROOPER FITNESS LLC and CLASSPASS INC., MOTION SEQ. NO. 002 Defendants. DECISION AND ORDER ------------------------------------------------------------------------------X The following e-filed documents. listed by NYSCEF document number 17, 18, 19, 20, 21 were read on this motion to/for PRO HAC VICE Upon the foregoing documents, it is ordered that the motion is denied with leave to renew upon proper papers. Defendant Class Pass, Inc. ("Class Pass"), through its attorney, Adam G. Possidente, Esq. of the law firm of Venable LLP, moves for an order, pursuant to 22 NYCRR § 520.11 and and 22 NYCRR §602.2, for leave to admit Caroline P. Gately, Esq., an attorney at the same firm, as counsel for Class Pass. The motion is unopposed. Based on a review of the papers submitted and the relevant statutes and case law, the motion is denied with leave to renew upon proper papers. , . < 1 of 4 [*FILED: NEW YORK COUNTY CLERK 12/05/2017 03:21 PM 2] NYSCEF DOC. NO. 26 INDEX NO. 157090/2017 RECEIVED NYSCEF: 12/05/2017 Factual and Procedural Background: In the captioned action, commenced August 8, 2017, plaintiff Kristen O'Brien alleges that she was injured during a workout at a gym due to the negligence of defendants.' Class Pass moves for an order, pursuant to 22 NYGRR §520.1 J(a)(l)(c) and 22 NYCRR §602.2, seeking to have Caroline P. Gately, Esq., a member of the firm of Venable, LLP and an attorney admitted to the bar in Maryland, Virginia, and the District of Columbia, admitted pro hac vice to represent it this action. In support of the motion, current counsel for ClassPass, Adam G. Possidente, Esq., an associate of the firm of Venable, LLP, submits a notice of motion with the following attachments: 1) an affidavit by Gately in which she attests that she is a member in good standing of the Maryland, Virginia, and District of Columbia bars, that she has no disciplinary proceedings pending against her in any state or federal court, that she is a member of the finn of Venable, LLP, that she has never been convicted of a felony or misdemeanor or held in contempt by any court, that she is familiar with the standards of professional conduct imposed upon members of the New York Bar, including the Rules of Professional Conduct, and that she is subject to the jurisdiction of the New York State courts for any acts occurring during her representation of plaintiffs; 2) an affirmation by Possidente in which he avers, inter alia, that he is an associate with Venable, LLP, that he is a member in good standing of the New York bar, that he requests Gately's admission to the New York bar pro hac vice, that Gately is a member in good standing of the Maryland, Virginia, and District of Columbia bars, that Gately has no disciplinary proceedings pending against her in any state or federal court, that Gately is a member of the firm of Venable, LLP, and that Gately has never been convicted of a felony or misdemeanor or held in contempt in any court; 3) Gately's certificates of good standing from the Maryland, Virginia, and District of Columbia bars; and 1 Although Class Pass does not annex the summons and complaint to its motion, this Court takes judicial notice of the complaint filed with this Court (Doc. I). See Kinherg Kinherg, 85 AD3d 673, 674 (I'' Dept 2011 ). All .references herein are to the documents filed with NYSCEF in connection with this matter. 2 2 of 4 [*FILED: NEW YORK COUNTY CLERK 12/05/2017 03:21 PM 3] NYSCEF DOC. NO. 26 INDEX NO. 157090/2017 RECEIVED NYSCEF: 12/05/2017 4) a proposed order admitting her to practice pro hac vice in New York. Docs. 18-21. Plaintiffs' Position: The sole reason proffered by Possidente for seeking Gately's admission pro hac vice is that ClassPass has requested that she represent it in this action. Legal Conclusions: "Pursuant to 22 NYCRR §520.1 l(a)(l), whether an out-of-[s]tate attorney should be admitted pro hac vice to participate in a particular matter is a determination best left to [the] Supreme Court's discretion." Neal v Ecolab. Inc., 252 AD2d 716 (3d Dept 1998); see Perkins v Elbilia, 90 AD3d 543 (I st Dept 2011 ). fn the exercise of its discretion, this Court finds that ClassPass has failed to set forth sufficient reasons why Gately should be admitted pro hac vice in this matter. Although Possidente represents that ClassPass would like Gately to serve as its counsel in this matter, he fails to apprise the Court of the specific facts of the instant case and why they warrant Gately's intervention; whether he intends to be replaced by Gately in this action or if he is to be merely assisted by her; and how Gately's expertise will benefit ClassPass. Additionally, in her affidavit, Gately's provides no detail whatsoever regarding any special skill or experience she has which would warrant her admission pro hac vice in this particular matter. Cf:, Perkins v Elbilia,' supra at 544. Further, she fails "to clarify the role that she would assume in the litigation. Neal v Ecolab, Inc., supra at 716. 3 3 of 4 [*FILED: NEW YORK COUNTY CLERK 12/05/2017 03:21 PM 4] NYSCEF DOC. NO. 26 INDEX NO. 157090/2017 RECEIVED NYSCEF: 12/05/2017 Finally, Gately's affidavit, executed in the District of Columbia, does not bear a certificate of conformity and thus fails to meet the requirements of CPLR 2309( c ) .. Therefore, in accordance with the foregoing, it is hereby: ORDERED that the motion by defendant ClassPass Inc. seeking to have Caroline P. Gately, Esq. admitted pro hac vice is denied, with leave to renew upon proper papers; and it is further, ORDERED that this constitutes the decision and order of the Court. 12/1/2017 DATE CHECK ONE: . Q CASE DISPOSED GRANTED APPLICATION: CHECK IF APPROPRIATE: 0 NON-FINAL DISPOSITION DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER DO NOT POST FIDUCIARY APPOINTMENT .4 4 of 4 D OTHER D REFERENCE

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