Opinion
2021-05680 Index 28415/19E
10-19-2021
Demba Sanyang et al., Plaintiffs-Appellants, v. Eddie Leroy Davis Jr., et al., Defendants-Respondents. Appeal No. 14398 No. 2020-03291
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants. Gallo Vitucci Klar LLP, Woodbury (James F. Desmond of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants.
Gallo Vitucci Klar LLP, Woodbury (James F. Desmond of counsel), for respondents.
Before: Gische, J.P., Webber, Mazzarelli, Moulton, Pitt, JJ.
Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered on or about May 11, 2020, which denied plaintiffs' motion for summary judgment as to liability and granted defendants' cross motion to disqualify plaintiffs' counsel, unanimously affirmed, without costs.
Plaintiffs' affidavits were sufficient to make a prima facie showing of negligence on defendants' part. Each plaintiff averred that the collision occurred when a truck owned and operated by defendants rear-ended the vehicle in which they were traveling (see Morgan v Browner, 138 A.D.3d 560, 560 [1st Dept 2016]).
In opposition, defendants raised an issue of fact by offering a nonnegligent explanation for the collision through an affidavit from defendant driver, who asserted that the collision occurred when plaintiff driver attempted to make an unsafe lane change into his traveling lane. This affidavit raises factual issues sufficient to defeat summary judgment (see Jeffrey v DeJesus, 116 A.D.3d 574, 575 [1st Dept 2014]; Vehicle and Traffic Law § 1128). Furthermore, the parties' conflicting versions of the accident, as well as the police report and accident photos submitted in support of the motion and in opposition, present issues of credibility to be resolved by the factfinder (see DeJesus, 116 A.D.3d at 575).
The motion court providently exercised its discretion in granting defendants' cross motion to disqualify plaintiffs' counsel (see Harris v Sculco, 86 A.D.3d 481, 481 [1st Dept 2011]; Justinian Capital SPC v WestLB AG, N.Y. Branch, 90 A.D.3d 585, 585 [1st Dept 2011]). Although plaintiffs' interests in this action are not necessarily in accord, counsel failed to obtain written consent from both plaintiffs prior to his dual representation of them, as is required (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[b][4]; see Greene v Greene, 47 N.Y.2d 447, 451-452 [1979]; LaRusso v Katz, 30 A.D.3d 240, 243-244 [1st Dept 2006]).