Opinion
9625N Index 24108/18E
06-13-2019
CITY & COUNTY PAVING CORP., Plaintiff–Respondent, v. TITAN CONCRETE, INC., Defendant–Appellant.
Farrell Fritz, P.C., Uniondale (Jason S. Samuels of counsel), for appellant. Sullivan PC, New York (Peter R. Sullivan of counsel), for respondent.
Farrell Fritz, P.C., Uniondale (Jason S. Samuels of counsel), for appellant.
Sullivan PC, New York (Peter R. Sullivan of counsel), for respondent.
Friedman, J.P., Richter, Tom, Gesmer, Moulton, JJ.
Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered December 3, 2018, which denied defendant's motion to disqualify plaintiff's counsel, unanimously reversed, on the law and the facts, without costs, and the motion granted.
Plaintiff's counsel represented defendant at the time that he commenced this action against defendant on plaintiff's behalf. Thus, the conflict of interest arose at that time and must be assessed as of that time (see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.7[a][1]; GeorgetownCo., LLC v. IAC/Interactive Corp., 2017 N.Y. Slip Op. 30676[U], 2017 WL 1362535, *7 [Sup. Ct., N.Y. County 2017] ; Vinokur v. Raghunandan, 27 Misc.3d 1239 (A), 2010 N.Y. Slip Op. 51108[U], 2010 WL 2553864, *3 [Sup. Ct., Kings County 2010] ).
Although the matter in which plaintiff's counsel represented defendant is unrelated to the instant matter, we find that counsel should be disqualified because "an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests" ( Cardinale v. Golinello, 43 N.Y.2d 288, 296, 401 N.Y.S.2d 191, 372 N.E.2d 26 [1977] ; see also New York State Bar Association, Rules of Professional Rule Conduct, rule 1.7, comment 6 ["(A)bsent consent, a lawyer may not advocate in one matter against another client that the lawyer represents in some other matter, even when the matters are wholly unrelated "] [emphasis added] ).