Lema v NY-1095 Ave. of the Ams., LLC

[*1] Lema v NY-1095 Ave. of the Ams., LLC 2013 NY Slip Op 50869(U) Decided on May 29, 2013 Supreme Court, Kings County Battaglia, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 29, 2013
Supreme Court, Kings County

Mario Lema, Plaintiff,

against

NY-1095 Avenue of the Americas, LLC, TISHMAN INTERIORS CORPORATION, TISHMAN CONSTRUCTION CORPORATION and PAL ENVIRONMENTAL SAFETY CORP., Defendants. NY-1095 AVENUE OF THE AMERICAS, L.L.C., Third-Party Plaintiff, SAFEWAY ENVIRONMENTAL CORP., Third-Party Defendant.



38400/07



Gabriel Darwick, Esq. of Wade Clark Mulcahy represented third-party defendant Safeway Environmental Corp. No other parties appeared on the motion.

Jack M. Battaglia, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on third-party defendant Safeway Environmental Corp.'s motion for an order, pursuant to CPLR 3212, granting it summary judgment dismissal of defendant/third-party plaintiff NY-1095 Avenue of the Americas, LLC's first and second causes of action up to the limits of Safeway's $5,000,000 general liability insurance policy; and defendant/third-party plaintiff NY-1095 Avenue of the Americas, LLC's fourth cause of action:

-Notice of Motion for Partial Summary Judgment

Affirmation in Support

Exhibits A-P

-Safeway Environmental Corporations' [sic] Memorandum of Law in Support of Its Partial [sic] Motion for Summary Judgment [*2]

Gabriel Darwick, Esq. of Wade Clark Mulcahy represented third-party defendant Safeway Environmental Corp. No other parties appeared on the motion.

On September 12, 2007, plaintiff Mario Lema, a laborer employed by third-party defendant Safeway Environmental Corp., allegedly sustained personal injuries when he was struck by a falling concrete block while on a scaffold on premises owned by defendant/third-party plaintiff NY-1095 Avenue of the Americas, LLC ("NY-1095").

In or about May 27, 2008, defendant/third-party plaintiff NY-1095, being represented by the law firm of Curan, Ahlers, Fiden & Norris, L.L.P. ("Curran Ahlers"), commenced a third-party action against third-party defendant Safeway. On or about September 12, 2008, third-party defendant Safeway, being represented by the law firm of Pillinger Miller and Tarallo, LLP ("Pillinger Miller"), interposed its Third Party Defendant's Answer with Cross-Claims and Counterclaims.

A Consent to Change Attorney, dated June 11, 2010, provides that the law firm of Pillinger Miller be substituted as attorneys-of-record for defendant/third-party plaintiff NY-1095 in place of the law firm Curran Ahlers. Notably, the Consent to Change Attorney is signed only by representatives of the law firm of Pillinger Miller, the law firm of Curran Ahlers, and NY-1095. The signature of Marco Flores of NY-1095 was notarized on the Consent to Change Attorney on July 1, 2010.

A Stipulation of Discontinuance dated July 2, 2010, which shows that the law firm of Curran Ahlers still represents NY-1095, and that the law firm of Pillinger Miller represents third-party defendant Safeway, provides for the discontinuance without prejudice of NY-1095's third-party action against Safeway.

On or about April 11, 2012, defendant/third-party plaintiff NY-1095, being represented by the law firm of Pillinger Miller, re-commenced the third-party action as against Safeway. On or about August 15, 2012, Safeway, being represented by the law firm of Wade Clark Mulcahy, interposed its Verified Answer to Amended Verified Third-Party Complaint.

Although Safeway does not seek to disqualify the law firm of Pillinger Miller from representing NY-1095 in this litigation, it does point out that Pillinger Miller represented Safeway at an earlier stage in this litigation. (See Affirmation in Support, ¶ 3.) Even without an express request to disqualify, the Court may raise the issue of disqualification sua sponte, and should do so under certain circumstances, such as where there is a clear conflict of interest. (See Flushing Savings Bank v FSB Properties, Inc. 105 AD2d 829, 831 [2d Dept 1984]; Vinokur v Raghunandan, 27 Misc 3d 1239[A], 2010 NY Slip Op 51108[U], *1 [Sup Ct, Kings County 2010]; Dorsainvil v Parker, 14 Misc 3d 397, 400 [Sup Ct, Kings County 2006]; cf. Dominguez v Community Health Plan of Suffolk, Inc., 284 AD2d 294, 294 [2d Dept 2001].)

Rule 1.9 of the Rules of Professional Conduct [22 NYCRR 1200.0], entitled "Duties to [*3]Former Clients", provides, among other things, as follows:

"(a)A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing."

Here, the law firm of Pillinger Miller formerly represented Safeway and is now representing its adverse party, NY-1095, in the same litigation. Having commenced a third-party action against Safeway, there is no question that the interests of NY-1095 and Safeway are materially adverse to one another. If Safeway provided informed consent, confirmed in writing to Pillinger Miller, to allow the firm to represent NY-1095 in the third-party litigation as against it, such writing is not provided in these papers.

Even prior to adoption of the Rules of Professional Conduct, "[a]n attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer's former client." (See Greene v Greene, 47 NY2d 447, 453 [1979].) The Court of Appeals has recognized that "[i]f an attorney has represented a client in an earlier matter and then attempts to represent another in a substantially related matter which is adverse to the interests of the former client, the presumption of disqualification is irrebuttable". (See Solow v W.R. Grace & Co., 83 NY2d 303, 313 [1994].) Here, Pillinger Miller represents its former client's adverse party in the same exact matter. (See also e.g. Cardinale v Cardinale, 43 NY2d 288, 295-96 [1977]; cf. Reem Contracting Corp. v Resnick Murray St. Associates, 43 AD3d 369, 371 [1st Dept 2007]; Medical Capital Corp. v MRI Global Imaging, Inc., 27 AD3d 427, 428 [2d Dept 2006]; see also generally Caravousanos v Kings County Hosp., 27 Misc 3d 237, 242-43 [Sup Ct, Kings County 2010] [Miller, J.].)

Even so, Rule 1.9 allows the firm to represent a former client's adverse party in the same matter where the former client gives the firm its informed consent, confirmed in writing. Again, no such writing has been submitted. In the absence of such writing, the Court need not comment further on whether informed consent, confirmed in writing, can be given under circumstances, such as here, where the firm who represented a party when an action was discontinued against it thereafter takes on representation of a party who then re-commences the action against the firm's former client. The Court notes, however, that "[c]ourts will infer the reasonable probability of disclosure of confidences' from the particular nature of the past and present representations at issue (see Caravousanos v Kings County Hosp., 27 Misc 3d at 243 [quoting Forbush v Forbush, 107 AD3d 375, 379-80 (4th Dept 1985)]), and that a former client is "entitled to be free of the apprehension, naturally arising under the circumstances at bar, that the prior representation would inure to the current adversar[y's] advantage" (see id. at 245 [quoting Decana Inc. v. Contogouris, 27 AD3d 207 (1st Dept 2006)].)

In addition, the papers also indicate that Pillinger Miller may also have had concurrent conflict of interest. (See Rules of Professional Conduct [22 NYCRR 1200.0] Rule 1.7.) The [*4]Consent to Change Attorney, dated June 11, 2010, which was fully executed on July 1, 2010, together with the Stipulation of Discontinuance, dated July 2, 2010, demonstrate that, for a short period of time, the law firm of Pillinger Miller was counsel of record for both third-party plaintiff NY-1095 and third-party defendant Safeway in this litigation. (See e.g. Zambrotta v 2935 Equities, 37 Misc 3d 1208[A], 2012 NY Slip Op 51941[U], *1-2 [Sup Ct, Kings County 2012].)

Rule 1.7(a)(1) of the Rules of Professional Conduct provides that "[e]xcept as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that ... (1) the representation will involve the lawyer in representing different interests". Here, since Pillinger Miller took on the representation of a client that was prosecuting a third-party action against another client, it is clear that the representation involves representing different interests.

Rule 1.7(b) of the Rules of the Professional Conduct provides that "notwithstanding a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if, [among other things], the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation". Here, Pillinger Miller represented adverse parties in the same litigation. Therefore, Rule 1.7 barred the firm from representing both NY-1095 and Safeway. (See Greene v Greene, 47 NY2d 447, 451 [1979] ["Perhaps the clearest instance of impermissible conflict occurs when a lawyer represents two adverse parties in a legal proceeding"]); Georgius v Villiage of Morrisville, 83 AD3d 1158, 1158-59 [3d Dept 2011]; Caravousanos v Kings County Hosp., 27 Misc 3d at 239-42.)

Although Pillinger Miller does not currently represent adverse parties in the same action in apparent violation of Rule 1.7, the history is context for the assessment of its position now with respect to Rule 1.9.

Significantly, it should be noted that NY-1095 did not submit any papers in opposition to Safeway's motion for partial summary judgment, which raises questions as to whether a determination not to submit papers was affected by the conflict of interest concerns implied in Safeway's motion papers.

As this Court has previously pointed out, contractual indemnification and insurance considerations in Labor Law cases might well allow representation that, in other contexts and circumstances, would be highly suspect. (See Zambrotta v 2935 Equities, 38 Misc 3d 1226[A], 2013 NY Slip Op 50277[U], *5 [Sup Ct, Kings County 2013].) That is no excuse, however, for ignoring the concerns reflected in the Rules of Professional Conduct and the mechanisms that the Rules provide to address those concerns.

Since the Court raises the issues of disqualification and conflict of interest sua sponte, and mindful that ethical rules cannot be mechanically applied in litigation (see S & S Hotel Ventures Ltd. Partnership, 69 NY2d 437, 443 [1987]), it will give the law firm of Pillinger Miller an opportunity to address the question (see Doody v Gottshall, 67 AD3d 1347, 1349 [4th Dept 2009].) As such, the summary judgment motion is denied with leave to renew after a [*5]determination as to whether Pillinger Miller must be disqualified from representing NY-1095. (See e.g. Solow v Grace & Co., 83 NY2d 303, 308 [1994]; see also Falk v Chittenden, 11 NY3d 73, 78 [2008]; Jamaica Pub. Serv. Co. Ltd. v AIU Ins. Co., 92 NY2d 631, 636 [1998]; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]; see also e.g. Zambrotta v 2935 Equities, 37 Misc 3d 1208[A], 2012 NY Slip Op 51941[U], at *3. )

In sum, the motion is denied with leave to renew in accordance with this Decision and Order. The law firm of Pillinger Miller and Tarallo, LLP shall file and serve motion papers addressing the conflict of interest and disqualification issues on or before June 28, or shall be disqualified from representing defendant/third-party plaintiff NY-1095 Avenue of the Americas, LLC, and defendant/third-party plaintiff NY-1095 Avenue of the Americas, LLC shall substitute counsel within thirty (30) days without the necessity of any notice or motion pursuant to CPLR 321(c). A copy of this Decision and Order is being mailed to all parties on this day.

May 29, 2013___________________

Jack M. BattagliaJustice, Supreme Court