Massey v Byrne

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Massey v Byrne 2013 NY Slip Op 30088(U) January 15, 2013 Sup Ct, New York County Docket Number: 107935/10 Judge: Saliann Scarpulla Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 112212013 [* 1] SUPREME COURT OF THE STATE OF NEW YORM NEW YORK COUNTY PRESENT: SAL!ANN SCARPULLA \ C\ PART Justice - Index Number: 107935/2010 MASSEY, CRAIG B. INDEX NO. vs MOTION DATE BYRNE, CHRISTOPHER W. MOTION SEQ. NO. Sequence Number: 003 SUMMARY JUDGMENT The following papers, numbered I to were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits Answering Affidavits - Exhibits IW s ) . IW s ) . IN O W - Exhibits Replying Affidavits RkZt.f [%?\ * Upon the foregoing papers, it is ordered that this motion is *. 1 J:' " 1.-* motion and ~ r ~ ~ s - m d are fdecided i n ascordz\ io i with accompanying memorandum decis;Gn. i Dated: I. CHECK ONE: ..................................................................... 2. [ CASE DISPOSED J 0DENIED CHECK AS APPROPRIATE: ........................... MOTION I : GRANTED S 3. CHECK IF APPROPRIATE: ................................................ nSETTLE ORDER DO NOT POST ??/d GRANTED IN PART fl OTHER SUBMIT ORDER FIDUCIARY APPOINTMENT nREFERENCE [* 2] Plaintiff, Index No.: 107935/10 Submission Datc: 08/08/20 I 2 - against- DECISION AND ORDER CHRISTOPIIER W. BYKNE and BYRNE COMMUNICATIONS, INC., Defendants. X _ _ _ _ _ _ _ _ _ l r _ _ _ _ _ l _ _ - - - - - - - 1 - l r - - - - - - 1 1 - ~ - - - - ~ ~ ~ ~ ~ ~ - - - - - - ~ ~ ~ ~ - - - For Plaintifl s: Thc Kurland Group 350 Broadway, Suitc 70 I New York, N Y 100 I3 For Defendant: The Law Offices ol Tedd S. Levinc, LLC 1305 Franklin Avenue, Suite 300 Garden City, N Y 1 1530 Papers considered in review of this motion for partial summary judgment and cross motion for sanctions: Noting of Motion . . . . . . . . . . . . . 1 3 ; AffinSupport.. . . . . . . . . . . . . . 2 . ................. 3 Mciii of Law i Aff in Opp . . . . . . . . . . . . . . . . . . . 4 t Mein of Law. . . . . . . . . . . . . . . . . 5 Notice of Cross Motion . . . . . . . . . 6 Aff in Support, . . . . . . . . . . . . . . . 7 Memo of Law in Suppoti . . . . . . . . 8 N W YORK Reply Mem o f Law. . . . . . . . . . . . . 9 CLERKS QmCE Afls in Opp to Cross Motion . . . . . 10 Rcply Aff. . . . . . . . . . . . . . . . . . . . I 1 FILED couN N HON. SALIANN SCARPULLA, J.: In this action for breach of contract aiid constructive trust involving a romantic relationship, defendants Christopher W. Hyrnc ( LByrne )and Byme Communications, Inc . ( I3yFIIe Coininun i cations ) (co11ect ively the defendants ) move for suinin ary 1 [* 3] judgment dismissing the complaint against them. Plaintiff Craig R. Massey ( Massey ) opposes the motion for summary judgment, and cross inoves for costs and sanctions. In the verified complain&Massey asserts that he and Byrne had a confidential and fiduciary relationship and lived together as life partners from 1997 until 2007. Massey also alleges that he and Byrne worked together at Byrne ConiiiiLinications during this period of time. In his cause of action for constructive trust, Massey nllcges that throughout the tiiiie they lived together and worked together, Byme made promises to Masscy regarding Byme s intentions to share their assets, and that throughout their ten ycar relationship thc parties agreed and Byme represented and promised that the parties assets wou Id be jointly used to maintain their lifestyle together and invest in thcir mutual benefit. Masscy further alleges that he relied on these promises when making personal and financial decisions, such as making personal and financial sacrifices for the benefit of Byriic Communications, Inc. and . . . Worlc[ingJ at a reduced salary and . . . foregoling] certain einployinent bcncfits in reliance 011 Byrne s promisc that it was for the mutual benefit of their partnership. Masscy asserts that Byrne benefitted from Massey s efforts and support, and that Massey must also be able to benefit. As to unjust enrichment, Massey alleges that Byrne has been enriched by Massey s contributions to the couplc s business, relationsliip and property. Massey also alleges a cause of action for fraudulent inducement, asserting that Byrne knowingly and 2 [* 4] fi-audulently induccd Massey to inovc to New York, and to work at a reduced salary under false pretense of sharing bciiefits of the partncrship with the intent of defrauding Massey of these assets and benefits of this investment. Massey allegcs that hut for Byrne s promises, Massey would not have moved to New York and worked for a reduced salary and fail to contribute to his own individiral savings andlor investments. For tlic cause of action for breach of conkact, Massey allegcs that he and Byrne had an oral agreeinelit to share equally in tlic asscts and resources gained in their partncrship and Hyrne has breached this agreement. Lastly, for the cause of action for partition, Massey alleges that while the title to the condominium at 45 East 25 Street, Apt. 14 A (the condo ) was only in Byrne s name, Massey and Byme jointly owned, lived in and maintained it. Massey is therefore asserting a claim for partition pursuant to KPAPL 5 9011 1 or in tlic alternative lie is seeking a court ordercd salc of the property )? rather than physical partition. In their answer, defendants deny substantially all allegations of the complaint, and assert twenty-live af iirinative def cnses. Tn addition, defciidarits assert counlerclaiins for fraitd in tlic inducement and unjust cnrichmcn~In the answer and counterclaiins defendants allege that upon learning in 1997 that Massey was dissatisfied with his job, occupation and compensation, and that he sought a change, Ryrne Communications offered Massey a part tiiiie positioii as an at will cmployee as a writer fbr the company s website. It is further allegcd that Massey was offered a coinpensation package with a 3 [* 5] base salary of $25,000 annually, along with mcdical benefits and free rznt, inaking his total coinpciisatioii cqiral to $65,700. Llcfendants allege that Massey moved to New York, accepted this part time position and moved into Byrile s rcsidence strictly as a boardcr. At that time, defcndants assert, Byrne rented his apartment and he was alone was responsible fur making payments under the lease. Dckndants asserts that Byrnc subsequently moved [wlith Massey tagging along, to an apartment where Byrne was again the only tenant named on the lease. Defendants allcgc that Byriie purchased the condo strictly out of his own fu~ids November, 2002, and again Masscy moved in with him. in Defendants assert that Massey worked for Byrne Cornmunications from 1997 through 1999 as a part time writer for the website, and ¬rom 2000 to 2002 as a part lime proofreader. 0 1 about February 15, 2002, Massey was diagnosed with tuberculosis, 1 or and that from his diagnosis until August 2004 the defendants continued to pay Massey his full salary and a rcnt-free apartment even though he did not perform any service for the coiiipany during that time. Defendants claim that as Massey failed to carry his weight, he proiniscd Bymc he would become a certified Apple Macintosh technician, which resulted in Ryriie directing Byrne Coniniunications to pay $1,900 for the Apple course, whilc continuing to pay Massey his full salary and allowing Masscy to live with Byrne rent free. Defendants assert that Massey iicvcr coiiiplctcd the course. Defendant conclude that [dluring his 4 [* 6] tenure at Hyrne Coiiiiiiunications and occupancy at l3yrne s residencc, Massey contributed no money to the compmiiy, supplied iniiiiinal sewiccs, paid no rent to Byme, and barcly paid for his own food. In the counterclaim for fraud in the inducement, defendants allege that Massey acccpted his position at Ryrne Communication with no intention of peri orniing thc job hc was hircd to do. Byrne and Byrne Communication relied on Massey s inisreprescntation and paid him the agreed salary and benefits, and permitted Massey to iiiove into Byrne s apartment. As for the counterclaiin for unjust enrichment, defendants assert that they cxpended cnormous effort, money and resources and failed to pursue sublet opportunitics which directly benefittcd Massey. Defendants also assert that Massey failed properly to coinpeiisate Byrne for occupying Byrne s residelice and to provide Hyrnc Coiniiiunicatioiis the bargained for services, therefore unjustly enriching Massey. Defendants now move for summary judgment, arguing that Massey s causes of action [or constructive trust, unjust enrichment, fraudulent inducement and breach of contract are barred by the applicable statute of limitations, and that all causes of action should be dismissed for M u r e to assert a prima facie cause of action. Massey opposes the motion, and cross-rnovcs for sanctions, arguing that Defendants made iiiisrcprcsentations in their vcrifkd pleadings, and submitted motion papers which coiitaincd h l s e statements which defendants and their attorneys knew to be false. Masscy 5 [* 7] also asserts that defendants counscl has a conflict of interest because he is a potential witness in this action. Defendants oppose the cross-motion for sanctions, asscrting that Massey s affidavit in support of the cross-motion contains lies and iiiisstatements. Defendants also argue that their counsel, Tcdd S. Levine, has been close friend oi Byriic s for approximately seventeen years, during which time Mr. Levine also servcd as Byrne s attorney. Mr. Levine aclu~owledges Massey attended his wedding at Byrile s guest, that but knows orno other social event which lie attended at which Massey was present. Defendants claim that the pleadings and exhibits presented in this case speak for theiiisdves. Discussion A iiiovant seeking suininaly judgment must make aprima facie showing of eiititlcinent to judgement as a matter of law, offering sufficient evidence to eliminate any material issues of fact. Winegrud v. New York Univ. Med. Ctr., 64 N.Y.2d 85 1, 853 (1 985). Once a showing has been made, the burden shifts to the opposing party, who inust then deinoiistrate the existciice of a triable issue of fact. Alvarez v. Prospect EIo,rp., 68 N.Y.2d 320, 324 ( 1 986); Zuckemenn v. City qfNew I ork, 49 N.Y.2d 557 (1980). Under CPLR 2 13(2), a claim for breach of contract is governed by a six-ycar statute of limitations. As a gencral principle, the statute of limitations begins to run whcii a cause o f action accrues . . . . In contract actions, we Jiavc recognized that a claim 6 [* 8] generally accrues at the time of thc brcach. Huhn Automotive Warehouse, Inc. V . American Zurich IIZS. Co., 189 N.Y.3d 765, 770 (2012) (citations omitted). Defendants argue that Massey s cause of action for breach of contract is tiiiie barred, because Massey testified that the purportcd agrceinent between Masscy and Byrne was entcred into in 1997, and was never honored by Byrne. Byme asserts, thcreforc, that thc breach asserted by Massey occurred throughout the rclationship or as early as 1999, soon after Byrne Communications was brined. Byriic also testificd at his deposition, however, that he and Massey never entered into any oral agreement. Jn opposition, Massey argucs that tlic cause of action did not accrue until the end of tlic partics ten ( I O ) year rclationship, because during their relationship the parties assets were held constructively in trust for the bcnefit o r both parties. Massey further argues that w e n if the statute of limitations did begin to run prior to the end of the parties relationship, Ryrne is estopped from raising the statute of limitations defense because his fraud and misrepresentation created a reasonable delay in the coinimenccinent of Massey s lawsuit. Here, there is a question of fact as to when the parties reached the alleged oral agreement, if in fact it existcd at all. Byrne testificd that lie and Massey, while living together as boyfriends, were not partners. Byrne also testificd that there was no agreeiiicnl lo share assets and profits of 13yrnc Coinmunicatioiis. Massey, on the other hand, testified at his deposition that the agreement to live as equal partners and to split all 7 [* 9] assets was cntercd into from the start of their relationship, and that is how they lived uiitil the end of thcir relationship. And while Massey acknowledges that the condo was only in Byrnc s nanic, and that he and Byrne maintained some joint but mostly separate bank accounts, Massey also testiflcd that he contributcd in other ways to tlic partnership, that thc decision to purchase the condo was inade jointly by Massey and Byrnc, and that they dccided that Massey would not pay rent because of a tax advantage to Byme. Finally, Massey alleges that the oral agreement was not breaclicd by Uyrne until thc end of their relationship in 2007. The parties have given conflicting accounts of whether an oral contract existed bctween tliein, and, if so, when in Fwt it was alleged to have been breached. Accordingly, thcre reinaiiis a question as to whethcr Massy s cause of action for breach of the aliegcd oral agreement is barred by tlic statute of limitations. See Buyside Controls, Inc. v. Telyas, 295 A.D.2d 343, 345 (2d Dep t 2002) ( [XJince questions of fact exist with respect to when the cause of action accrued, the court properly denied that branch of the dcfeiidant s motion which was to disiniss it on the ground that it was barred by the statute of limitations ). Similarly, there is a question of fact as to whether an oral agrcement between the parties exjstcd thus summary .j udginent dismissing the breach of contract cause of action for insufticicncy is denied. Where, as here, there is an issue of fact with respect to the existence of an oral agreement, [it renders] sumnary judgment on the hrcach of contract 8 [* 10] cause of action inappropriate, Pyramid Brokergge Co., lnc. v. Zurich Americaw luis. Cb., 71 A D . 3d 1386, 1387 (4 Ilep t 2010) (citations omitted). Next, Byrne argues that the cause of action for constructive trust is barred by tlie statute. of limitations. Such a claim [for constructive trust] is governed by the six-year statute of limitations provided by UPLR 213 (l), which coinmeiices to run upon occurreiicc ofthe wrongful act giving rise to a duty of restitution, and iiot from the time when the facts constituting the fraud x c discovercd. Knobel v. Shaw, 90 A.D.3d 493, 496 (1 Dep t 201 1) (quoting Kuufmun v. Cohen, 307 A.L).2d 113, 127 (1st Dep t 2003)). See also Quadrozzi v. Estde o Quadrozzi, 952 N.Y.S.2d 74, 77 (2d Dep t 2012) (saiiic). f A deteriiiiiiation ofwhcn the wrongful act triggering the running of the Statute of Limitations occurs depends upon whether the constructive trustee acquired the property wrongfully, in which case the property would be held adversely from the date of acquisition or whether thc constructivc trustee wrongfilly withholds property acquircd lawfully from the beneficiary, in which casc the propcrty would be held adversely from the date the trustee breachcs or repudiatcs the agreeiiicnt to transfer thc property. Marie P@ingInca. v. Muric, 271 A.D.2d 507, 508 (2d Dep t 2000) (internal quotation iiiarlcs and citations omitted)). See also DeLazirentis v. DeLaurentis, 47AD3d 750, 75 1-752) ( 2d Dep t 2008). Defendants argue that Byrne solely purchased tlic condo arid never concealcd that fact or that the title was in his name only. Defendants assert that Massey was merely a 9 [* 11] rent-free lodger who ncver had any right to or expectation or an owiicrship interest in rhe property. In opposition, Massey asserts that although Ryriie purchased the condo in his name only, Byrne s and Massey s intent was that it was to bc a shared asset. Massey therefore asserts that the cause of action accrued not when Byme purchased thc property but rather when the two ended their relationship and he railed to providc Massey with what Massey argues was his portion of thc shared asset. Here, the gravamen of the plaintiff s coiiiplaiiit is not that the constructivc trustee acquircd the property wrongfully, but rather, that the defendant breached the trust relationship at sonic later date. Accordingly, questions of fact exists as to (1) when the defendant allegedly breached the agreement by an identifiable, wrong ¬ul act demonstrating his refusal to convey a one-half interest in the property to the plaintiff, and (2) whether the plaintiff s claim was therefore time-barred . . . . Sitkowski v. Petzing, 175 A.D.2d 801, 802 (2d Dep t 1991). These question of fact prevent granting the motion for suininary judgment dismissing the constructive trust cause of action as time barred. Del endants have also failed to iiialcc a prima facic showing of entitlement to dismissal on the merits as a matter of law on the constructive trust cause of action. The elements necessary for the imposition of a constructive trust are [ 1J a confidential or ijduciary relationship, [2] a promise, 131 a transfer in reliance thcreon, and [4] unjust enrichment. Abacus Fed. Sav. &ink v. Lim, 75 h.D.3d 472, 473 (lst Dep t 2010) 10 [* 12] (citation omitted). While Dcfendaiits argue that there was not a confidentjal or fiduciary relatioiisliip bctwecn Byriie and Massey, thcre is a question of fact on this point. In thc answer defendants claiiii that Byrnc and Massey had a business relationship, and that Massey was mcrely a boarder in his home. Yct, in his dcposition and the papers in support ol this motion, Byi-ne acknowlcdged they he and Massey were in a romantic relationship, and that hc and Massey shared certain bank accounts, purchased property in Crcorgia together, and that Byrne took care of-Masscy when lic was sick with tubcrculosis. Massey testified that they were in a life partncrship, whereby they shared everything, and made joint decisions about financial, business and personal matters. Additionally, Byrnc and Masscy s depositions prcseiit conflicting testimony as to whcther Byrne inade promises to Massey about sharing lhe property. As there are plainly questions of fact as to all elemcnts of this cause of action, suininary judgment disinissiiig it is deniccl. Defendants also move to dismiss thc cause of action for unjust enrichment as untimcly. Causes of action for unjust enrichmcnt arc governed by the six-year statute of limitations set forth in CNAR 13( 1 ). SW EMD Constr. Clorp. v. New Yovk City Dept. uf 2 Hous. Preserv. & Dev., 70 A.D.3d 893, 894 (2d Dcp t 2010); 37 ParkDrive S., Inc. v. Duffy, 63 A.D.3d 1040, 1041 (2d Dep t 2009). [A] claim for unjust enrichment accrues upon thc occurrence of the allcged wrongful act giving rise to restitution. Kaufivaiz v. Cohen, 307 A.D.2d 113, 127 (lst Dep t 2003). [* 13] Defendants assert that the unjust enricliment cause of action accrued on the day that the deed for the condo was recorded, making this cause of action t h e barred. Howevcr, Massey asscrts that Byrne only becaine unjustly enriched upon the dissolution of their rclatioiiship when Massey was denied his one-half interest in the property. For the same reasons as discussed above in reference to the cause of action for constructivc trust, there are questions of fact as to i f and when a cause of action for unjust enrichment accrued. Accordingly, suininary judgment is also denied as to this cause of action. Defendants also move lo dismiss Massey s claim for fraudulent induceincnt as time barred. The statute of limitations applicable to such claiins [for fraudulent inducement] is six years. Beesrner v. Besicorp Dev., Inc., 72 A.D.3d 1460, 1462 (3d Dep t 20 10) (citing CPLR 2 13). A cause of action based upon fraud must be coiniiieiiccd within six years from the tiinc of the thud or within two years from the lime the i raud was discovered, or with reasonable diligence, could have been discovered, whichever is longer. Oggioni v. Oggioni, 46 A.D.3d 646, 648 (2d Dep t 2007). Byriie argues that, as with the cause of action for breach of contract, it is time barred as it acci-ued whcn he and Massey first would have first entered into the alleged oral agreement in 1999. As with the breach of contract cause ofaclion, there is a question of h c t as to if and when an oral agreement was readied. Accordingly, at this time the cause of action cannot be dismissed as time barred. 12 [* 14] Similarly, there is a question of fhct regarciing the cause of action for fraudulent inducement. The essential elements of an action for fraudulent inducement are the representation o ¬a material existing fact, falsity, scienter, deception and injury. A person who fraudulcntly makes a misrcpresentatioii o f . . . intcntion . . . for the purpose of inducing another to act or refrain from action iii reliance thereon in a business transaction is liable for thc harm caused by the other sjustifiable reliance upon the misrepresentation. Cenlury 21, h e . v. F. W Woolworth, eo., 18 1 A.D.2d 620,625 (1 st Dep7 1992) (internal quotations omitted). As stated above, therc is a queshii of fact as to whether the oral agreemcnt allcged in the complaint was ever entered into between Byrne and Massey. Therefore, questions of fact also exist as to whether Massey was fraudulently induced into entering the alleged oral agreement, and summary judgment cannot be granted. Defendants also move for summary judgment on the remaining cause of action for partition pursuant to RPAPL, 5 90 1(l), which provides that: By Whom Maintainable. (1) A person holding and in possession of real property as joint tenant or tenant in cotninon, in which he has an estate of inheritance, or for life, or for years, may maintain an action for the partition ofthe property, and for a sale if it appears that a partition cannot be made without great pre-judice to Ihe owners. Defendants argue that Massey does not posses the condo as a *jointtenant, or a tenant in coiiiiiion, nor does he have an estatc of inheritance, or for life, or f or years. Defendants further argue that there is no basis for this cam of action because ( I ) therc is 13 [* 15] 110 writing conveying the condo to Massey, see General Obligations Law 55-703; ( 2 ) there is no basis for Massey to assert a claiin lor constructive trust; and (3) a claiin for constructive trust docs not fall within tlie partition statute, In opposition, Massey does not argue that he fdls into one of the catcgories of those who inay inairitah an action for partition, but merely asserts that partition is an equitable remedy in which the court may weigh inany hctors. As Massey fails to establish that he has standing to maintain an action for partition, defendants motion to dismiss this cause of action is granted. See Wutson v. Puscal, 27 A.D.3d 459, 460 (2d Dep t 2006) ( Further, the Supreme Court properly granted that branch of [defendant s] motion which was for summary judgment dismissing the [I cause or action, which sought the partition of certain real property, inasmuch as the plaintiff was iiot [a] person holding and in possession of real property as joint tenant or tunant in common (RlIhPL 90 1 (1) ). Lastly, Massey s cross motion for costs and sanctions is denied. Pursuant to 22 NYCRR 5 130-1.1, the court, in its discretion may impose financial saiictions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct. See aZso Llantin v. Doe, 30 A.11.3d 292 ( lstDept. 2006). Saiictions are within the sound discretion of the trial court and are reserved for serious transgressions. Massey argues that sanctions are appropriate because defendants have f d e d to disclose rclevant and necessary idorniation in an efforl to delay or prolong thc resolutioii of thc litigation and 14 [* 16] to harass Massey. 111support, Massey asserts that the factual allegations labcled Uncontroverted Facts in defendants moving papers iriclude inischaracterizations which ddendants aiid their attorney know to bc raise, as wcll as defendants blanket denial of all allegations in the complaint, including that Massey and Bymc were in a roinantic relationship. facts lies at the hear1 of A dispute over what coiistitutes uncoiitrov~rted this and most other lcgal actions. In this matter, which deals with the end of a romantic relationship, thc dispute over the facts aiid denial o ¬ certain allegations inay be hurtful, but it does not rise to the level of frivolous conduct required for the iinposition of sanctions. Although plaintiff does not forinally cross-niovc for disqualification of defendant s counsel, there is a portion of the cross motion concerning Mr. Levine s representation of defendants, in which Masscy asserts that he plans to call Mr. Levine as a witness at trial because of Mr. Levine s personal knowledge of the relationship bctween Massey and Byrne and his history as a close personal friend of both parties. Massey also asserts that he is concerned more gcnerally about Mr. Levine s ability to act as ob.jective aiid disinterested counsel in this case. In this portion of the motion Massey <requests that the Court investigatc Defendants counsel s potential conflict of interest and grant such further relief as it d e e m just, necessary and proper. Disqualification [of counsel] may be required only when it is likely that the testimony to be given by the witncss is necessaiy. Testimony may be rclevant and even highly useful but still not strictly necessary. A finding of neccssity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence. S & S Hotel Ventures Ltd. ParlnershiE, v. 777 S. H. Corp., 69 N.Y .2d 437, 445446 (1987) (citation omitted). Here, Massey h i l s to assert, let alone establish, that Mr. Levine s testimony is necessary, nor docs he further substantiate his allegations of conflict of interest. To the extciit that Massey informally seclcs disqualification o f defendants counsel, 1dcny that request. See Lau v. S&MEnters., 72 A.D.3d 497,498 (1 Dcp t 201 0) ( The court properly denied plaintiff s motion to disqualify defeiidants 15 [* 17] In accordaiicc with the foregoing, it is hereby ORDERED that the iiiotion for suininary judgment by dcfendants Christopher W. Byrne and Ryrne Communications, Inc. is granted o & to the extent that the cause of action for partition is dismissed, but is in all other respect denied; and it further ORDERED that plaintiff Craig l .Massey s cross motion for costs aiid sanctions is 3 denied. I his constitutes the decision aiid order of the Court. Dated: Ncw York, New Yorlc January 152013 1t)-Sa1i ann Scarp ulla, J .S .C . I FILED j JAN 18 2013 i couiiscl . . . as plaintiff failcd to show that couiiscl s testiiilony would bc necessary or that his reprcsentation created a conflict of interest ) (citations omitted). 16

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