Opinion
1220 CA 20-00505
03-19-2021
SOURCE ONE LOGISTICS, LTD., and Glenn Lista, Plaintiffs-Respondents, v. BBX, INC., Doing Business as Boston Buffalo Express, Defendant-Appellant.
GROSS SHUMAN P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR DEFENDANT-APPELLANT. DUKE HOLZMAN PHOTIADIS & GRESENS LLP, BUFFALO (CHRISTOPHER M. BERLOTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
GROSS SHUMAN P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR DEFENDANT-APPELLANT.
DUKE HOLZMAN PHOTIADIS & GRESENS LLP, BUFFALO (CHRISTOPHER M. BERLOTH OF COUNSEL), FOR PLAINTIFFS-RESPONDENTS.
PRESENT: WHALEN, P.J., SMITH, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action against defendant seeking damages for, inter alia, breach of contract. Defendant appeals from an order that, among other things, denied its motion seeking to disqualify the law firm representing plaintiffs and partial summary judgment limiting the third, fourth, and fifth causes of action to the time period of November and December 2012.
Contrary to defendant's contention, Supreme Court did not abuse its discretion in denying that part of the motion for disqualification of plaintiffs’ law firm on the ground that defendant lacked standing to seek that relief inasmuch as defendant did not show the existence of a prior attorney-client relationship between it and the opposing law firm (see Ellison v. Chartis Claims, Inc. , 142 A.D.3d 487, 487-488, 35 N.Y.S.3d 922 [2d Dept. 2016] ; Scafuri v. DeMaso , 71 A.D.3d 755, 756, 896 N.Y.S.2d 421 [2d Dept. 2010] ; A.F.C. Enters., Inc. v. New York City School Constr. Auth. , 33 A.D.3d 736, 736, 823 N.Y.S.2d 433 [2d Dept. 2006] ; see also Bison Plumbing City v. Benderson , 281 A.D.2d 955, 955, 722 N.Y.S.2d 660 [4th Dept. 2001] ).
We also reject defendant's contention that the court erred in denying that part of the motion seeking partial summary judgment. Even assuming, arguendo, that defendant met its initial burden on that part of the motion, we conclude that plaintiffs raised triable issues of fact whether their claims under the third, fourth, and fifth causes of action should be limited to the months of November and December 2012 (see generally Zuckerman v. City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).
We have reviewed defendant's remaining contentions and conclude that none warrants reversal or modification of the order.