Opinion
# 2011-039-251 Claim No. 120197 Motion No. M-79959
09-20-2011
FRANCIS A. ZARRO, JR. v. STATE OF NEW YORK
Synopsis
Out-of-state attorney's motion to appear pro hac vice is granted. Motion for pre-action discovery denied, as a claim for relief has been filed with the Chief Clerk of the Court of Claims. Case information
UID: 2011-039-251 Claimant(s): FRANCIS A. ZARRO, JR. Claimant short name: ZARRO, JR. Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120197 Motion number(s): M-79959 Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Norman J. Voog, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Jessica Hall Assistant Attorney General Third-party defendant's attorney: Signature date: September 20, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Norman J. Voog, Esq., an attorney admitted to practice law in the State of Connecticut, seeks admission pro hac vice to this Court for the purpose of representing Francis A. Zarro, Jr. in connection with claim number 120197 filed with the Chief Clerk of the Court of Claims on August 5, 2011. Attorney Voog also seeks an order from the Court granting him permission to conduct certain pre-action discovery pursuant to CPLR § 3102 (c).Defendant opposes the motion.
Claimant's motion for pre-action discovery was filed with the Chief Clerk of the Court of Claims prior to the filing of his claim.
The Appellate Division, Third Department rules provide, in relevant part, that an "[a]pplication in this department for admission pro hac vice . . . to participate in the trial or argument of any particular cause, shall be made to the court in which the action or proceeding is pending" (22 NYCRR § 805.3). Pursuant to the New York Rules of Court for the Court of Appeals, "[a]n attorney and counselor-at-law or the equivalent who is a member in good standing of the bar of another state, territory, district or foreign country may be admitted pro hac vice . . . in the discretion of any court of record, to participate in any matter in which the attorney is employed" (22 NYCRR § 520.11 [a] [1]).That section further provides that "[n]o attorney may be admitted pro hac vice pursuant to paragraph (1) of subdivision (a) to participate in pretrial or trial proceedings unless he or she is associated with an attorney who is a member in good standing of the New York bar, who shall be the attorney of record in the matter" (22 NYCRR § 520.11 [c]). "While pro hac vice admission furthers this State's 'policy favoring representation by counsel of one's own choosing' . . . that policy must be balanced against the interest in promoting judicial efficiency and a trial court's considerable authority to control its courtroom and calendar" (Neal v Ecolab, Inc., 252 AD2d 716 [1998] [internal citations omitted]).
Notably, the former version of this rule, found at 22 NYCRR § 520.9 (e) (1), limited pro hac vice admission to the "trial or argument of any particular cause." In Largeteau v Smith, (197 AD2d 832, 833 [1993]), the Third Department, relying upon 22 NYCRR § 520.9 (e) (1), held that "pro hac vice status could [not] be granted to an attorney for the purposes of pretrial discovery." The Court's determination in Largeteau, supra, has since been superceded by the revision of this rule, now found at 22 NYCRR § 520.11 (a), "to provide for admission pro hac vice
by a court of record to an attorney 'to participate in any manner in which the attorney is employed,' " including preaction discovery (Warren Keegan Assoc., Inc. v Pierce, 6 Misc 3d 1017 (A) [2002]).
Based upon a review of the papers submitted in connection with the application for admission pro hac vice, the Court concludes that the application shall be granted. Applicant Voog has offered sufficient proof to establish that he "is associated with an attorney who is a member in good standing of the New York bar, who shall be the attorney of record in the matter" (22 NYCRR § 520.11 [c]). Voog offers correspondence from Julie Gaughran Esq., LLP, dated August 11, 2011 and received by the Court on August 28, 2011, together with an executed notice of appearance. Gaughran states in her letter, among other things, that she is willing to sponsor Voog in connection with his application for admission pro hac vice in this matter, that she is "a member in good standing of the New York Bar having been admitted to practice in the appellate division of [the] Supreme Court 2nd Department on June 20, 1995, and that her office is located in Armonk, New York.
A review of the Court's file reveals that the notice of appearance has not yet been filed with the Court.
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Moreover, "[a]dmission pro hac vice is conditioned upon counsel being familiar and complying with the standards of conduct imposed upon those duly admitted to practice in New York" (Adkins v Lipner, Gordon & Co., 10 Misc 3d 1062(A) [2005], citing 22 NYCRR § 520.11 [d] [1]). "An attorney seeking admission pro hac vice must also agree to be subject to the jurisdiction [of the] courts of New York with respect to all acts occurring during the course of the attorney's participation in the action" (id., citing 22 NYCRR § 520.11 [d] [2]). Applicant Voog states that he is "familiar with the standards of Professional Conduct imposed upon members of the New York Bar, and agree[s] to comply with the rules and practices of this Court, and the Disciplinary Rules of the Code of Professional Responsibility, as required by Section 520.11 (d) and (2), of the Rules of the Court of Appeals." He further conveys his "understand[ing] that by entering an appearance in this case [he] will subject [himself] to the jurisdiction of the Courts of the State of New York with respect to any acts occurring during the course of [his] participation in this claim."
The Court further concludes that movant's petition for pre-action discovery must be denied. CPLR § 3102 (c) provides, in relevant part, that "[b]efore an action is commenced, disclosure to aid in bringing an action . . . may be obtained, but only by court order." Since a claim for relief has been filed with the Chief Clerk of the Court of Claims, the motion for pre-action discovery must necessarily be denied.
Accordingly, it is
ORDERED that Motion No. M-79959 is granted in part and denied in part to the extent that counsel's application for permission to appear pro hac vice is granted and the motion is otherwise denied; it is further
ORDERED that counsel must file with the Chief Clerk of the Court of Claims a notice of appearance within 30 days from the date of filing of this Decision and Order.
September 20, 2011
Albany, New York
James H. Ferreira
Judge of the Court of Claims
PAPERS CONSIDERED:
1. Notice of Motion to be Admitted Pro Hac Vice;
2. Affidavit in Support of Motion for Disclosure Prior to Commencement of Action and Motion to be Admitted Pro Hac Vice by Norman J. Voog, Esq. sworn to on June 1, 2011 with exhibits;
3. Affirmation in Opposition by Jessica Hall, AAG sworn to on June 20, 2011;
4. Affidavit by Norman J. Voog, Esq. sworn to on July 5, 2011 with exhibits; and
5. Correspondence by Julie Gaughran, Esq. dated August 11, 2011 with Notice of Appearance dated August 16, 2011.