Opinion
2019–08706 Index No. 715187/17
03-16-2022
Cindy KOUMANTAROS, et al., respondents, v. HEPHAISTOS DEVELOPING, LLC, et al., defendants, CDW Carpentry, Inc., appellant.
Westermann Sheehy Keenan Samaan & Aydelott, LLP, East Meadow, NY (Joanne Emily Bell of counsel), for appellant. Sacco & Fillas, LLP, Astoria, NY (James Anthony Wolff of counsel), for respondents.
Westermann Sheehy Keenan Samaan & Aydelott, LLP, East Meadow, NY (Joanne Emily Bell of counsel), for appellant.
Sacco & Fillas, LLP, Astoria, NY (James Anthony Wolff of counsel), for respondents.
COLLEEN D. DUFFY, J.P., CHERYL E. CHAMBERS, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.
DECISION & ORDER
In an action, inter alia, to recover for damage to property, the defendant CDW Carpentry, Inc., appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated June 24, 2019. The order denied that defendant's motion to disqualify the law firm of Sacco & Fillas, LLP, from the continued representation of the plaintiffs.
ORDERED that the order is affirmed, with costs.
The plaintiff Cindy Koumantaros was the owner of real property on 28th Road in Queens. The plaintiffs John Argyros and Dana Argyros were the owners of an adjacent parcel of real property. The two properties were identical row houses, attached to each other by a common wall. In or about June 2017, the plaintiffs entered into an agreement with the defendant CDW Carpentry, Inc. (hereinafter CDW), among others, to add an extra upper level to each of their properties. On June 20, 2017, building materials were placed on the roof of the construction site, and the roof collapsed.
The plaintiffs retained the law firm of Sacco & Fillas, LLP (hereinafter Sacco), to represent them and they thereafter commenced this action. In its answer, CDW asserted separate counterclaims against Koumantaros and John Argyros, alleging, in essence, that Koumantaros had negligently failed to safeguard the construction site and that John Argyros was negligent in his supervision of the work at the construction site. CDW subsequently moved to disqualify Sacco from representing the plaintiffs, arguing, inter alia, that CDW's counterclaims created a conflict of interest between the plaintiffs. The Supreme Court denied the motion, and CDW appeals.
"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client" ( Rowley v. Waterfront Airways, Inc., 113 A.D.2d 926, 927, 493 N.Y.S.2d 828 ; see Matter of Kelly, 23 N.Y.2d 368, 375–376, 296 N.Y.S.2d 937, 244 N.E.2d 456 ; Midwood Chayim Aruchim Dialysis Assoc., Inc. v. Brooklyn Dialysis, LLC, 82 A.D.3d 1177, 1178, 919 N.Y.S.2d 397 ). However, "[d]isqualification denies a party's right to representation by the attorney of its choice" ( S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 ; see Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663 ), and may create "significant hardships" for that party ( Solow v. Grace & Co., 83 N.Y.2d 303, 310, 610 N.Y.S.2d 128, 632 N.E.2d 437 ; see Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d at 131, 651 N.Y.S.2d 954, 674 N.E.2d 663 ; S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d at 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 ).
Accordingly, where the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) are invoked in litigation, courts "are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake" ( Niesig v. Team I, 76 N.Y.2d 363, 369–370, 559 N.Y.S.2d 493, 558 N.E.2d 1030 ; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d at 444, 515 N.Y.S.2d 735, 508 N.E.2d 647 ). It is the Supreme Court's responsibility to balance the competing interests, and "[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" ( Falk v. Gallo, 73 A.D.3d 685, 685, 901 N.Y.S.2d 99 ; see Cardinale v. Golinello, 43 N.Y.2d 288, 292, 401 N.Y.S.2d 191, 372 N.E.2d 26 ; Matter of Erlanger v. [Erlanger], 20 N.Y.2d 778, 779, 284 N.Y.S.2d 84, 230 N.E.2d 727 ; Midwood Chayim Aruchim Dialysis Assoc., Inc. v. Brooklyn Dialysis, LLC, 82 A.D.3d at 1178, 919 N.Y.S.2d 397 ).
"The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination" ( Lipschitz v. Stein, 65 A.D.3d 573, 576, 884 N.Y.S.2d 442 [internal quotation marks omitted]; see Gulino v. Gulino, 35 A.D.3d 812, 812, 826 N.Y.S.2d 903 ). Here, CDW failed to submit evidence sufficient to sustain its burden of demonstrating that disqualification of Sacco is warranted at this juncture (see Matter of 148 S. Emerson Partners, LLC v. 148 S. Emerson Assoc., LLC, 157 A.D.3d 889, 891, 69 N.Y.S.3d 868 ; Lipschitz v. Stein, 65 A.D.3d at 576, 884 N.Y.S.2d 442 ). The fact that CDW interposed counterclaims alleging that Koumantaros and John Argyros were negligent, without more, is insufficient to establish that Sacco's continuing representation of the plaintiffs will involve representing differing interests (see Rules of Professional Conduct [ 22 NYCRR 1200.0 ] rule 1.7[a][1]; see generally Matter of 148 S. Emerson Partners, LLC v. 148 S. Emerson Assoc., LLC, 157 A.D.3d at 891, 69 N.Y.S.3d 868 ).
Accordingly, the Supreme Court providently exercised its discretion in denying CDW's motion to disqualify Sacco from representing the plaintiffs in this action.
DUFFY, J.P., CHAMBERS, CHRISTOPHER and ZAYAS, JJ., concur.