Tso v Horiuchi
Annotate this CaseDecided on December 19, 2013
Sur Ct, Nassau County
Wendy Tso, individually and on behalf of KODY ADAM HORIUCHI, a minor, being the sole beneficiary of the KODY ADAM IRREVOCABLE TRUST, dated 7/2/2004, a member of KENJI MARK KODY ADAM KYLE LINUS LLC, a Delaware limited liability company, and KYLE LINUS HORIUCHI, a minor, being the sole beneficiary of the KYLE LINUS IRREVOCABLE TRUST, dated 7/2/2004, a member of KENJI MARK KODY ADAM KYLE LINUS LLC, a Delaware limited liability company, and KENJI MARK HORIUCHI, being the sole beneficiary of the KENJI MARK IRREVOCABLE TRUST, dated 7/2/2004, a member of KENJI MARK KODY ADAM KYLE LINUS LLC, a Delaware limited liability company, Petitioners,
against
Kentaro Horiuchi and KENSUKE HORIUCHI, Respondents.
2011-364382
(Petitioner)
Wendy Tso, Esq.
Law Office of Wendy Tso, P.C.
299 Broadway, Suite 309
New York, NY 10007-4103
(for Respondents)
Nicholas J. Damadeo, Esq.
Nicholas J. Damadeo, P.C.
27 West Neck Road
Huntington, NY 11743-2618
Edward W. McCarty III, J.
This is a motion in an accounting proceeding to disqualify Nicholas Damadeo as attorney for Kentaro Horiuchi and Kensuke Horiuchi. The movant is Wendy Tso, the mother of Kenji Horiuchi, Kody Horiuchi and Kyle Horiuchi. Ms. Tso further seeks sanctions, an award of costs and an order referring Mr. Damadeo to the grievance committee. The respondents, in turn, have moved to disqualify Ms. Tso as attorney for her children and for the appointment of a guardian ad litem for the two minor children.
A complete history of this matter is set forth in a prior decision of this court dated September 27, 2012 (Dec Nos. 2789, 27990, 27991). To summarize, Wendy Tso and Kentaro Horiuchi are litigants in a contested divorce proceeding in Supreme Court, Nassau County. They have three children for whom various accounts were established. Before this court are three accounts filed by Kentaro Horiuchi and Kensuke Horiuchi (Kentaro's father) as trustees of inter vivos trusts for the benefit of the three children.
At the outset it should be noted that once jurisdiction is complete in the trust accounting proceedings, a guardian ad litem will be appointed for the minor beneficiaries.
Wendy Tso seeks to disqualify Nicholas Damadeo on a number of grounds. She alleges that Mr. Damadeo: engaged in a pattern of obscuring and concealing facts; thwarted the proper administration of justice; has a conflict of interest in that a prior attorney represented both Wendy Tso and Kentaro Horiuchi which conflict she now imputes to Mr. Damadeo; colluded with his client to disobey court decisions; and that he took a retainer from funds which belonged to the children.
Mr. Damadeo, in turn, seeks the disqualification of Ms. Tso because she may be a witness in the accounting proceeding as the planning regarding the funding of accounts may have involved actions on the part of both Ms. Tso and Mr. Kentaro Horiuchi in the course of estate planning. Mr. Damadeo also seeks the appointment of a guardian ad litem.
Disqualification of an attorney rests in the sound discretion of the court (Falk v Gallo, 73 AD3d 685 [2d Dept 2010]). The person seeking to disqualify the attorney bears the burden of proof (Aryeh v Aryeh,14 AD3d 634 [2d Dept 2005]). Conclusory allegations that there is a conflict of interest are not enough to sustain the burden (Olmos v Town of Fishkill, 258 AD2d 447, 448 [2d Dept 1998]). A party's entitlement to be represented by counsel of his or her own choosing is a "valued right which should not be abridged absent a clear showing that disqualification is warranted" (Feeley v Midas Properties, 199 AD2d 238 [2d Dept 1993]).
The movant, Wendy Tso, has not met her burden. There is nothing in the record to reflect that Mr. Damadeo has a connection to the prior attorney. Ms. Tso's affidavit is replete with accusations against the prior attorneys but in no way can those accusations be imputed to
Mr. Damadeo. Her motion to disqualify Mr. Damadeo is denied.
Mr. Damadeo, in turn, moves to disqualify Ms. Tso on the ground that she may be a witness in the accounting proceeding. Disqualification may be required when the testimony is necessary (S & S Hotel Ventures v 777 S.H. Corp., 69 NY2d 437, 445 [1987]). Testimony may be relevant and useful but still not strictly necessary (id.). A finding of necessity "takes into [*2]account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (id.). Mr. Damadeo has failed to show that the testimony of Ms. Tso is necessary to this proceeding. His motion to disqualify Ms. Tso is denied.
With regard to Ms. Tso and Mr. Damadeo's request to award costs and sanctions, 22 NYCRR §130-1.1 governs the award of costs and sanctions and requires a finding of frivolous conduct. Frivolous conduct, in turn, is defined as conduct that is completely without merit or undertaken primarily to delay or prolong the resolution of the litigation or to harass or asserts material factual statements that are false (22 NYCRR §130-1.1[c][1],[2],[3]).
Under the circumstances presented herein, the court cannot find that the conduct was frivolous and the motions are denied.
All of the remaining relief is denied.
This constitutes the decision and order of the court.
Dated: December 19, 2013
Edward W. McCarty III
Judge of the
Surrogate's Court
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