SINGH v. FRIEDSON

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Supreme Court, Appellate Division, Second Department, New York.

Gurdhian SINGH, appellant, v. Jon FRIEDSON, et al., respondents.

Decided: September 27, 2004

MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS, and WILLIAM F. MASTRO, JJ. Barry Siskin, New York, N.Y., for appellant. Brand & Brand, Garden City, N.Y. (Charles R. Gueli of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Queens County (Polizzi, J.), dated August 16, 2002, as denied his cross motion to disqualify the law firm of Brand & Brand from representing both defendants, and, in effect, to determine that he was not obligated to prove that he sustained a serious injury within the meaning of Insurance Law § 5102 against the defaulting defendant Jon Friedson.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the cross motion which was, in effect, to determine that the plaintiff is not obligated to prove that he sustained a serious injury within the meaning of Insurance Law § 5102 against the defaulting defendant Jon Friedson and substituting therefor a provision granting that branch of the cross motion;  as so modified, the order is affirmed insofar as appealed from, with costs to the appellant.

 The Supreme Court erred in denying that branch of the plaintiff's cross motion which was, in effect, to determine that he is not obligated to prove that he sustained a serious injury within the meaning of Insurance Law § 5102 against the defaulting defendant Jon Friedson (hereinafter Friedson).   Under the circumstances, Friedson is precluded from contesting the issue of whether the plaintiff sustained a serious injury at the inquest on damages.   The plaintiff previously moved for leave to enter a default judgment against the defendant Friedson upon his failure to answer.   In his cross motion to vacate his default, Friedson alleged a meritorious defense as to the happening of the accident, but failed to address the issue of serious injury.   The Supreme Court granted Friedson's cross motion and denied the plaintiff's prior motion.   On appeal, this court reversed (see Singh v. Friedson, 288 A.D.2d 292, 732 N.Y.S.2d 880).   Accordingly, Friedson is precluded, pursuant to the doctrine of law of the case, from raising the issue of serious injury on this appeal (see Beresford v. Waheed, 302 A.D.2d 342, 754 N.Y.S.2d 350;  cf. Zecca v. Riccardelli, 293 A.D.2d 31, 742 N.Y.S.2d 76).

 Since the plaintiff was neither a former nor present client of the law firm of Brand & Brand, he did not have standing to seek its disqualification from dual representation of the two defendants (see Broadway Equities v. Metropolitan Elec. Mfg. Co., 306 A.D.2d 426, 763 N.Y.S.2d 830;  Ogilvie v. McDonald's Corp., 294 A.D.2d 550, 742 N.Y.S.2d 897).

The plaintiff's remaining contentions are without merit.

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