Opinion
613-13
04-15-2015
Charles W. McCutchen, Plaintiff, v. 3 Princesses and A P Trust dated February 3, 2004; RANDALL FAMILY TRUST, U/A dated 12-14-12; THE HOM CAMP GREENTOP LIMITED PARTNERSHIP; TAMARACKS PARTNERS, a North Carolina Limited Partnership; HAROLD WILLIAM DAVIS, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and SIBYL D. QUAYLE, Defendants
James M. Brooks, Lake Placid, for plaintiff. Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel), for defendants 3 Princesses and A P Trust dated February 3, 2004, Harold Williams Davis, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle. John J. Randall, IV, Locust Valley, for defendant Randall Family Trust. Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel), for defendants HOM Camp Greentop Limited Partnership and Tamaracks Partners, a North Carolina Limited Partnership.
James M. Brooks, Lake Placid, for plaintiff.
Briggs Norfolk, LLP, Lake Placid (Ronald J. Briggs of counsel), for defendants 3 Princesses and A P Trust dated February 3, 2004, Harold Williams Davis, III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle.
John J. Randall, IV, Locust Valley, for defendant Randall Family Trust.
Wilkins & Griffin, PLLC, Lake Placid (John T. Wilkins of counsel), for defendants HOM Camp Greentop Limited Partnership and Tamaracks Partners, a North Carolina Limited Partnership.
Robert J. Muller, J.
Plaintiff owns a parcel of land located along Lake Placid in the Town of North Elba, Essex County. On November 1, 2013, plaintiff commenced this action pursuant to RPAPL article 15 to obtain a judgment "[d]eclaring that [he] has an easement by prescriptive right and right-of-way on and over Blodgett Road from his parcel of land to its joinder with County Route 31." Blodgett Road is a private, wooded drive beginning at County Route 31 and then proceeding in a northerly direction through properties belonging to, inter alia, defendant 3 Princesses and A P Trust dated February 3, 2004 (hereinafter 3 Princesses), defendant Randall Family Trust U/A dated December 14, 2012 (hereinafter Randall Family Trust), defendant HOM Camp Greentop Limited Partnership (hereinafter Camp Greentop), defendant Tamaracks Partners, a North Carolina Limited Partnership (hereinafter Tamaracks Partners) and defendants Harold Williams Davis III, Individually and as Trustee of the Camp Red Fox Trust dated September 29, 2010 and Sibyl D. Quayle (hereinafter referred to collectively as Camp Red Fox). Each of these individuals and/or entities has an easement over Blodgett Road for purposes of accessing their respective parcels and, accordingly, each was named as a defendant ( see RPAPL 1511 [1]). Presently before the Court is 3 Princesses and Camp Red Fox's motion to dismiss the complaint for failure to name a necessary party and the Randall Family Trust's motion to disqualify James M. Brooks, Esq. from representing plaintiff.
Turning first to the motion to dismiss, 3 Princesses and Camp Red Fox contend that a portion of Blodgett Road over which plaintiff seeks an easement is owned by Whiteface Resorts Holdings LLC (hereinafter Whiteface) and, further, that the action must be dismissed as a result of plaintiff's failure to name Whiteface as a defendant (see CPLR 3211 [a] [10]).
RPAPL 1511 (1) provides that, "[i]n an action brought under [RPAPL article 15], the person in possession shall be made a party to the action . . . ." RPAPL 1511 (2) then provides as follows:
"Where it appears to the court that a person not a party to the action may have an estate or interest in the real property which may in any manner be affected by the judgment, the court, upon application of such person, or of any party to the action, or on its own motion, may direct that such person be made a party."
Here, it is undisputed that Whiteface owns the portion of Blodgett Road proceeding from County Route 31 to Camp Red Fox's property. Inasmuch as plaintiff is seeking an easement over this portion of roadway, the Court finds that Whiteface is a necessary party (see RPAPL 1511 [1]). With that said, the Court declines to grant 3 Princesses and Camp Red Fox's motion to dismiss the complaint as a result of plaintiff's failure to name Whiteface as a defendant. Rather, plaintiff is hereby directed to join Whiteface as a party to this action in accordance with the terms set forth below (see RPAPL 1511 [2]; Petti v Town of Lexington, 92 AD3d 1111, 1114 [2012]; Matter of Gleason v Town of Clifton Park Planning Bd., 90 AD3d 1205, 1206 [2011]).
Inasmuch as plaintiff contends that Whiteface need not be joined as a party because it does not dispute the relief requested, the Court is not persuaded. Whiteface could sell or transfer its ownership interest in this portion of Blodgett Road at any time and future owners may not be so agreeable. Whiteface must be joined as a party so as to ensure that no such issues arise.
Turning now to the motion to disqualify Mr. Brooks from representing plaintiff, the property owned by the Randall Family Trust was formerly owned by John J. Randall, III and Annelie Randall. By agreement dated December 14, 2012, it was transferred to the Randall Family Trust for estate planning purposes. According to the Randall Family Trust, Mr. Brooks represented the Randalls in a 2006 action commenced by Harold Krieger and Roberta Russell Kreiger, the former owners of property now owned by 3 Princesses, which action also involved an easement dispute over Blodgett Road. Specifically, a judgment was sought declaring that the Randalls did not have an easement over the portion of Blodgett Road traversing the Kreigers' property. This action was ultimately resolved, with the parties entering into a "Supplemental Easement Agreement" dated April 27, 2007. 3 Princesses, Camp Greentop, Tamaracks Partners and Camp Red Fox were also parties to this Agreement.
An attorney " must avoid not only the fact, but even the appearance, of representing conflicting interests'" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 130 [1996], quoting Cardinale v Golinello, 43 NY2d 288, 296 [1977]; see R.M. Buck Constr. Corp. v Village of Sherburne, 292 AD2d 36, 39 [2002]). In this regard, Rule 1.9 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides as follows:
"A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a 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."
A party seeking disqualification under Rule 1.9 (a) must demonstrate "(1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131).
Here, the Court finds that the first two criteria have been met. Mr. Brooks concedes that he represented the Randalls in the 2006 action and there can be no dispute that the instant action involves the same or substantially related subject matter. With that said, the principal issue is whether the interests of the Randall Family Trust are materially adverse to that of plaintiff. The Randall Family Trust contends that they are, stating that "confidential communications were had with [Mr.] Brooks not only concerning [p]laintiff's use of Blodgett Road but also about the permissions granted to him from the Randall family as well as information concerning the Randall family's use of the roadway." Mr. Brooks, on the other hand, contends that they are not, stating that "[t]he only mention [he] recall[s] from any of the Randalls about [plaintiff] was during some social moment at their property [when] someone stated what a nice person [plaintiff] was."
Under the circumstances, the Court finds that the third criteria has also been met. Notwithstanding whether Mr. Brooks recalls any specific conversations with the Randalls about plaintiff, the fact remains that Mr. Brooks previously obtained an easement for the Randall Family Trust over the very same portion of roadway that plaintiff now claims by prescriptive easement. Moreover, the Randall Family Trust has filed an answer objecting to the relief sought by plaintiff. "Th[e] rule of disqualification fully protects a client's secrets and confidences by preventing even the possibility that they will subsequently be used against the client in related litigation" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131). Here, that possibility clearly exists. The Randall Family Trust's motion to disqualify Mr. Brooks from representing plaintiff is therefore granted in its entirety (see id. at 136; see Matter of Peters, 124 AD3d 1266, 1268 [2015]; R.M. Buck Constr. Corp. v Village of Sherburne, 292 AD2d at 39).
The Court notes that Mr. Brooks is counsel to Whiteface as well, which may also present a conflict.
This action is hereby stayed until July 15, 2015 to provide plaintiff with an opportunity to retain new counsel. Once new counsel has been retained, said counsel shall immediately file a notice of appearance with the Essex County Clerk and send a filed copy of the same to the Court. In the event new counsel is not retained on or before July 15, 2015, plaintiff shall then be deemed pro se.
Inasmuch as plaintiff has been directed to join Whiteface as a party to this action, such joinder shall be effectuated on or before August 14, 2015, and the Court provided with proof of the same.
Therefore, having considered the Affidavit of Ronald J. Briggs, Esq., sworn to June 10, 2014, submitted in support of the motion to dismiss; Memorandum of Law of Ronald J. Briggs, Esq., dated June 16, 2015, submitted in support of the motion to dismiss; Affirmation of John T. Wilkins, Esq., sworn to June 26, 2014, submitted in support of the motion to dismiss; Affidavit of Kenneth Holmes, sworn to June 27, 2014, submitted in support of the motion to dismiss; Exhibit Binder, submitted in support of the motion to dismiss; Memorandum of Law of John T. Wilkins, Esq., dated June 27, 2014, submitted in support of the motion to dismiss; Affirmation of John J. Randall, IV, Esq. with exhibits attached thereto, sworn to June 18, 2014, submitted in support of the motion to disqualify; Affidavit of James M. Brooks, Esq. with exhibits attached thereto, submitted in opposition to the motion to dismiss and the motion to disqualify; and Affidavit of John J. Randall, IV, Esq. with exhibit attached thereto, sworn to October 1, 2014, submitted in further support of the motion to disqualify, it is hereby
ORDERED that 3 Princesses and Camp Red Fox's motion to dismiss the complaint for failure to name Whiteface as a necessary party is denied; and it is further
ORDERED that plaintiff is directed to join Whiteface as a party to this action in accordance with the terms set forth below; and it is further
ORDERED that the Randall Family Trust's motion to disqualify James M. Brooks, Esq. from representing plaintiff is granted; and it is further
ORDERED that this action is stayed until July 15, 2015 to provide plaintiff with an opportunity to retain new counsel; and it is further
ORDERED that once plaintiff has retained new counsel, said counsel shall immediately file a notice of appearance with the Essex County Clerk and send a filed copy of the same to the Court; and it is further
ORDERED that, in the event plaintiff fails to retain new counsel on or before July 15, 2015, he shall then be deemed pro se; and it is further
ORDERED that Whiteface shall be joined as a party to this action on or before August 14, 2015, and the Court provided with proof of the same.
The original of this Decision and Order has been returned to counsel for the Randall Family Trust for filing and service with notice of entry. The Notice of Motion dated June 10, 2014 and Notice of Motion dated June 18, 2014 have been filed by the Court together with the above-referenced submissions.
Dated:April 15, 2015
Lake George, New York
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ROBERT J. MULLER, J.S.C.
ENTER: