Appellate Division of the Supreme Court of New York, 2007

Ahrens v. Chisena

Appellate Division of the Supreme Court of New York · Decided May 15, 2007

40 A.D.3d 787; 836 N.Y.S.2d 278

Cases that cite this one

11 later published cases cite this decision.

Cervera v. Bressler (Appellate Division of the Supreme Court of New York 2015)
Doubletree Hotel Tarrytown v. Chacko (Appellate Division of the Supreme Court of New York 2014)
Doubletree Hotel Tarrytown v. Chacko (Appellate Division of the Supreme Court of New York 2014)
Chusid v. Silvera (Appellate Division of the Supreme Court of New York 2013)
Chusid v. Silvera (Appellate Division of the Supreme Court of New York 2013)
Shaw Funding, L.P. v. Samuel (Appellate Division of the Supreme Court of New York 2012)
Shaw Funding, L.P. v. Samuel (Appellate Division of the Supreme Court of New York 2012)
American Home Mortgage v. Villaflor (Appellate Division of the Supreme Court of New York 2011)
Lopez v. DePietro (Appellate Division of the Supreme Court of New York 2011)
King v. Gil (Appellate Division of the Supreme Court of New York 2010)
Federal Financial Co. v. Public Administrator (Appellate Division of the Supreme Court of New York 2008)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for legal malpractice, the defendant Ronald J. Chisena appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated November 18, 2005, as, after a hearing to determine the validity of service of process, inter alia, granted the plaintiffs’ motion for leave to enter a default judgment against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

“The advocate-witness disqualification rules contained in the *788Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party’s [counsel], at its adversary’s instance, should be disqualified during litigation” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440 [1987]). At bar, the hearing court providently exercised its discretion in permitting the plaintiffs’ counsel to testify at a hearing that he personally delivered the summons and complaint, by hand, to the defendant Ronald J. Chisena. Where, as here, there is no necessity for the plaintiffs’ counsel to be called as a witness at trial, no violation of the advocate-witness rule exists (see Code of Professional Responsibility DR 5-102 [c] [22 NYCRR 1200.21 (c)]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra at 443).

Moreover, the plaintiffs satisfied their evidentiary burden of establishing the propriety of service of process (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, 34 AD3d 536, 538 [2006]; Home Fed. Sav. Bank v Mahood, 260 AD2d 438, 439 [1999]). The hearing court’s determination that the testimony of the plaintiffs’ counsel was more credible than that of Chisena is entitled to great weight on appeal (see Lattingtown Harbor Prop. Owners Assn., Inc. v Agostino, supra; Home Fed. Sav. Bank v Mahood, supra; Demakis v Papadopoulos, 259 AD2d 461 [1999]). .

Chisena’s remaining contentions regarding his purported prior service of an answer are without merit. Mastro, J.P., Santucci, Skelos and Dickerson, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.