| M.A.C. Duff, Inc. v ASMAC, LLC |
| 2009 NY Slip Op 03140 [61 AD3d 828] |
| April 21, 2009 |
| Appellate Division, Second Department |
| M.A.C. Duff, Inc., Doing Business as Pacific East Restaurant, etal., Respondents, v ASMAC, LLC, et al., Appellants, et al.,Defendant. |
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In an action, inter alia, for a judgment declaring that the plaintiffs have an ownership interestin the defendant ASMAC, LLC, the defendants ASMAC, LLC, and Aram Sabet appeal, bypermission, from an order of the Supreme Court, Suffolk County (Emerson, J.), dated December28, 2007, which granted that branch of the plaintiffs' oral motion which was to disqualify thefirm of Moss & Kalish, PLLC, from the continued representation of the defendants ASMAC,LLC, and Aram Sabet.
Ordered that the order is affirmed, without costs or disbursements.
The plaintiff Michael Castino, Jr. (hereinafter Castino Jr.), was in a partnership with thedefendant Aram Sabet to run a restaurant called Pacific East. The two men decided to purchasethe property where the restaurant was located (hereinafter the restaurant property). Both mensigned a contract to purchase the restaurant property and then formed a corporation, ASMAC,LLC (hereinafter ASMAC), to which they assigned the contract. Since Castino Jr. had problemswith his credit, his father, the plaintiff Michael Castino (hereinafter Castino Sr.), became a 50%shareholder in ASMAC, in his son's stead. Larry Lazar of the law firm Moss & Kalish, PLLC(hereinafter Moss & Kalish), represented Castino Jr. and Sabet in the purchase of the restaurantproperty and helped them form ASMAC.
Castino Jr. and Aram sought to get a mortgage for ASMAC to purchase the restaurantproperty, but could not obtain a full mortgage, and Sabet's father offered to finance the purchase.The appellants allege that Sabet's father would only finance the purchase on the condition thatSabet was the sole owner the property, and that, for this reason, Castino Sr. relinquished hisinterest in ASMAC. The plaintiffs deny this allegation.[*2]
The plaintiffs brought this action against ASMAC, Sabet,and Moss & Kalish, inter alia, for a judgment declaring that they had an ownership interest inASMAC, based on Castino Sr.'s ownership interest in ASMAC. The appellants are representedin this case by Moss & Kalish. The action, insofar as asserted against Moss & Kalish, wasdiscontinued by stipulation.
The case was brought to trial and, in the middle of the trial, the plaintiffs orally moved, interalia, to disqualify Moss & Kalish on the grounds that attorneys from Moss & Kalish would becalled to testify and that Moss & Kalish had a conflict of interest, since it had previouslyrepresented the Castinos in the same matter. The trial court granted that branch of the plaintiffs'oral motion. We affirm.
The court providently exercised its discretion in disqualifying the appellants' counsel. Codeof Professional Responsibility DR 5-108 (a) (1) (22 NYCRR 1200.27 [a] [1]) provides that alawyer may not represent "another person in the same or a substantially related matter in whichthat person's interests are materially adverse to the interests of the former client." Pursuant to thisprovision, the party seeking disqualification of opposing counsel must establish: "(1) theexistence 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 theinterests of the present client and former client are materially adverse" (Tekni-Plex, Inc. vMeyner & Landis, 89 NY2d 123, 131 [1996]; see Calandriello v Calandriello, 32 AD3d 450, 451 [2006]; Columbus Constr. Co., Inc. v PetrilloBldrs. Supply Corp., 20 AD3d 383 [2005]). Here, the plaintiffs established that CastinoJr. had a prior attorney-client relationship with Moss & Kalish, that the matters involved in bothrepresentations were substantially related in that they concerned the ownership of the same pieceof property at issue in the action, and that the interests of Castino Jr. and the appellants arematerially adverse.
While courts disfavor motions to disqualify counsel that are made during or on the eve oftrial (e.g. Marcus v Marcus, 17AD3d 219 [2005]; Dominguez v Community Health Plan of Suffolk, 284 AD2d294, 295 [2001]; Natiello v Natiello, 209 AD2d 389 [1994]), in this case, the plaintiffstimely raised the issue during a preliminary conference and were directed by the court to refrainfrom making a disqualification motion until the court deemed it necessary and appropriate. Thecourt deemed it appropriate when it became apparent that a Moss & Kalish attorney would becalled as a witness to testify, highlighting the actual conflict of interest. Under the peculiarcircumstances of this case, we do not fault the plaintiffs for the timing of the motion todisqualify, as the delay was a result of an adherence to the directives of the court.
In light of our determination, the appellants' remaining contentions have been renderedacademic. Dillon, J.P., Balkin, Belen and Chambers, JJ., concur. [See 2007 NY Slip Op34313(U).]