Caiola v Allcity Ins. Co.
2004 NY Slip Op 03756 [7 AD3d 557]
May 10, 2004
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 28, 2004


Cirino Caiola et al., Plaintiffs,
v
Allcity Insurance Company, Defendant. Solomon Abrahams, Nonparty Appellant. (Matter No. 1.) In the Matter of Parkside Limited Liability Company. Solomon Abrahams, Nonparty Appellant. (Matter No. 2.)

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In an action to recover damages for personal injuries and an unrelated proceeding pursuant to Limited Liability Company Law § 702 for the judicial dissolution of a limited liability company, Solomon Abrahams, former attorney for the plaintiff in Matter No. 1 and former attorney for a respondent in Matter No. 2, appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), entered July 22, 2003, which denied his motion, inter alia, to dismiss a criminal contempt proceeding against him.

Ordered that the order is affirmed, without costs or disbursements.

The appellant contends that the Supreme Court did not have the power to commence the criminal contempt proceeding against him sua sponte. However, having unsuccessfully litigated this issue in a prior proceeding pursuant to CPLR article 78 (see Matter of Abrahams v DiBlasi, 293 AD2d 530 [2002]), the appellant is collaterally estopped from making this argument (see Goldman [*2]Plumbing & Heating Corp. v Nesbit, 244 App Div 311 [1935]), which, in any event, is without merit (cf. Judiciary Law § 2-b [3]; De Lancey v Piepgras, 141 NY 88 [1894]; Wehringer v Brannigan, 232 AD2d 206 [1996]).

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in declining to recuse itself after commencing the criminal contempt proceeding (see Skripek v Skripek, 239 AD2d 488 [1997]).

The appellant's remaining contentions are without merit. Ritter, J.P., S. Miller, Adams and Cozier, JJ., concur.