Camel v Nijjar

[*1] Camel v Nijjar 2009 NY Slip Op 50218(U) [22 Misc 3d 1122(A)] Decided on February 11, 2009 Supreme Court, Kings County Kurtz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 11, 2009
Supreme Court, Kings County

Gid Ngib Camel, Plaintiff,

against

Harminderpaul Nijjar, PATRICK D. CARLO, EXEC-U-CAR LIMOUSINE, INC., MICHELLE AGINS, and THE NEW YORK TIMES COMPANY, Defendants.



29931/05



Callan, Koster, Brady & Brennan, LLP

Attorney for Defendants

Patrick D. DiCarlo and

Exec-U-Car Limousine, Inc.

One Whitehall Street, 10th Floor

New York, New York 10004

Brecker Fishman Pasternack

Popish Heller Reiff & Walsh, PC

Attorneys for Plaintiff

222 Broadway, 19th Floor

New York, New York 10038

Barry & Post LLC

Attorneys for Defendant

Harminderpal Nijjar

131 East Ames Court Plainview, New York 11803

Raven & Kolbe, LLP

Attorney for Defendants

Michelle Agins and

The New York Times Company

126 East 56th Street, Suite 202

New York, New York 10022

Donald Scott Kurtz, J.

Defendants Patrick D. DiCarlo and Exec-U-Car Limousine, Inc., (hereinafter "movants") move for an order disqualifying plaintiff's attorney and law firm pursuant to 22 NYCRR §§1200.24 (DR 5-105) and 1200.27 (DR 5-108).

Plaintiff commenced the instant action for personal injuries allegedly sustained as a result of a motor vehicle accident which occurred on September 7, 2004. The case was scheduled for trial on October 7, 2008. On October 1, 2008, plaintiff's counsel was advised by counsel for defendant Michelle Agins (hereinafter "Agins") that Agins believed she was being represented by plaintiff's counsel in an unrelated workers' compensation action. This matter came to movants' attention on the trial date, resulting in an adjournment of the trial and the instant motion to disqualify plaintiff's counsel.

Movants argue that plaintiff's firm should be disqualified from representing plaintiff in this action because it also represents Agins in an unrelated workers' compensation case. Disciplinary Rule 5-105(a), (c) and (d) is cited in support of the proposition that plaintiff's attorney's representation of Agins will or is likely to adversely affect plaintiff and/or that the representation would likely involve plaintiff's attorney representing different interests. Movants also argue that plaintiff's attorney may have violated Disciplinary Rule 9-101 in that plaintiff's attorney has a duty to avoid the appearance of impropriety; has a duty to his client that is [*2]fiduciary in nature; and that each of his clients is entitled to feel that he or she has the attorney's undivided loyalty. Movants contend that plaintiff's attorney's conduct should not be measured so much by whether the case in which he represents Agins and this case are similar in nature, but instead against the duty of loyalty plaintiff's attorney owes both plaintiff and Agins.

In opposition, plaintiff argues that movants do not have standing to bring this motion. Moreover, there has been no violation of Disciplinary Rule 5-105 or 9-101 in that there is no real or apparent conflict of interest. After full disclosure, both plaintiff and Agins have waived any potential conflict of interest in writing and request that plaintiff's counsel remain counsel for both plaintiff herein and Agins in the unrelated workers' compensation matter. Moreover, plaintiff's counsel submits an affidavit from Agins wherein she states that at no time during the course of her ongoing workers' compensation case was she asked about plaintiff's personal injury action.

In reply, movants allege that in the case of a potential violation of an ethical obligation by another attorney, an adverse party may move to disqualify the attorney for the opposite party on the ground of a conflict of interest. Movants contend that even if the Court finds that movants do not have standing to bring the instant motion, the Court has the inherent power to raise a conflict of interest issue and disqualify plaintiff's counsel.

It is well settled that the "disqualification of an attorney is a matter which rests within the sound discretion of the court (citation omitted)." Fischer v. Deitsch, 168 AD2d 599 (2d Dept 1990). The Court must consider "the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." S & S Hotel Ventures Ltd Partnership v. 777 S. H. Corp., 69 NY2d 437, 440 (1987). On a motion to disqualify, the movant bears the burden of showing that a clear disqualification is warranted. See Olmoz v. Town of Fishkill, 258 AD2d 447 (2d Dept 1999); Campolongo v. Campolongo, 2 AD3d 476 (2d Dept 2003); Haberman v. City of Long Beach, 298 AD2d 497, 498-499 (2d Dept 2002); Reichenbaum v. Reichenbaum & Silberstein, P.C., 162 AD2d 599, 600 lv dismissed 77 NY2d 873 (1991).

"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client (citation omitted.) Rowley v. Waterfront Airways, Inc., 113 AD2d 926, 927 (2d Dept 1985). "When the firm sought to be disqualified had never represented the moving party, that firm owed no duty to that party." Id. See AFC. Enterprises, Inc. v. New York City School Const. Authority, 33 AD3d 736 (2d Dept 2006) (stating that since the movant "is neither a present nor a former client of the subject attorneys, it has no standing to seek disqualification based on conflict of interest."); Ogilvie v McDonald's Corp., 294 AD2d 550, 551 lv dismissed in part, denied in part 98 NY2d 754(2002). Moreover, it follows that "if there is no duty owed there can be no duty breached." Rowley v. Waterfront Airways, Inc., 113 AD2dat 927.

This motion to disqualify is based upon plaintiff's attorney's alleged breach of his fiduciary duty and its adverse effect on plaintiff. However, movants lack standing to raise this [*3]issue. Moreover, the two parties who have standing to raise the issue of conflict of interest and disqualification have each waived any potential conflict. Plaintiff's counsel submits an affirmation from plaintiff wherein he states that his counsel advised him that there may be an appearance of impropriety; that a question may be raised as to whether counsel can properly examine and/or cross- examine defendant Agins at the time of trial; and that there exists a potential conflict of interest. Plaintiff clearly states that he wishes to continue to be represented by his current counsel. In her affidavit, defendant Agins states that at the time of her examination before trial in this matter, she had not yet retained plaintiff's counsel in the workers' compensation matter. Moreover, she too discussed this matter with her attorneys herein and agrees to waive any conflict that may exist.

Consequently, the Court finds that under these circumstances, movants have no standing to seek disqualification of plaintiff's counsel.

In view of the foregoing, the motion is denied in its entirety and this matter shall proceed to trial on February 24, 2009.

The foregoing shall constitute the Decision and Order of the Court.



DONALD SCOTT KURTZ

Justice, Supreme Court