| Cunningham v Anderson |
| 2009 NY Slip Op 07557 [66 AD3d 1207] |
| October 22, 2009 |
| Appellate Division, Third Department |
| Mykelti Cunningham, an Infant, by His Guardian, Utopia R.Rogers, Appellant, v John K. Anderson, Defendant and Third-Party Plaintiff-Respondent. LarryCunningham, Third-Party Defendant-Appellant. |
—[*1] Goldberg Segalla, L.L.P., Albany (William J. Greagan of counsel), for defendant andthird-party plaintiff-respondent.
Malone Jr., J. Appeal from an order of the Supreme Court (Egan Jr., J.), entered March 25,2009 in Albany County, which, among other [*2]things, granteddefendant's motion to disqualify the counsel for plaintiff and third-party defendant.
This personal injury action was originally commenced against defendant by third-partydefendant, Larry Cunningham, on behalf of his son, plaintiff, seeking damages for injuriesallegedly caused by exposure to lead paint. When custody of plaintiff was transferred to UtopiaR. Rogers, the parties stipulated to amend the caption to substitute Rogers as plaintiff's legalguardian. Following some discovery, defendant commenced a third-party action seekingcontribution against Cunningham. After plaintiff's attorney, Mo Athari, filed an answer to thethird-party complaint on Cunningham's behalf, defendant moved to disqualify Athari fromrepresenting both plaintiff and Cunningham on the basis of an "unwaivable conflict of interest."Plaintiff cross-moved for, among other things, summary judgment dismissing the third-partycomplaint. Supreme Court granted defendant's motion and disqualified Athari from furtherrepresentation of any of the parties. Plaintiff and Cunningham appeal.
In the third-party complaint, rather than claiming that Cunningham "affirmatively created orexacerbated the lead paint conditions" (M.F. v Delaney, 37 AD3d 1103, 1105 [2007]; see Ward v Bianco, 16 AD3d1155, 1156 [2005]; see also Cantave v Peterson, 266 AD2d 492, 493 [1999];Cooper v County of Rensselaer, 182 Misc 2d 487, 488-489 [1999]), defendant allegesthat Cunningham failed to act to eliminate or prevent plaintiff's exposure to the alleged leadhazard, failed to notify plaintiff's medical and educational providers of the alleged exposure andfailed to mitigate or provide treatment for plaintiff's alleged injuries. Inasmuch as suchallegations are essentially impermissible claims of negligent supervision (see M.F. vDelaney, 37 AD3d at 1105; Ward v Bianco, 16 AD3d at 1156-1157; see alsoGeneral Obligations Law § 3-111), the third-party complaint should have been dismissed.
As a result of the foregoing, defendant's claim that Athari is disqualified fromsimultaneously representing Cunningham and plaintiff is moot. Further, defendant lacks standingto move to disqualify Athari on the basis of alleged successive conflicts of interest (seeformer Code of Professional Responsibility DR 5-108 [22 NYCRR former 1200.27]). "The basisof [such] disqualification motion is an allegation of a breach of a fiduciary duty owed by anattorney to a current or former client" (Rowley v Waterfront Airways, 113 AD2d 926,927 [1985] [citations omitted]). A party moving to disqualify an opponent's attorney on this basismust establish, among other things, "the existence of a prior attorney-client relationship betweenthe moving party and opposing counsel" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d123, 131 [1996]). As defendant has never been represented by Athari, Athari does not owedefendant the duty necessary to confer defendant with standing to challenge Athari's continuedrepresentation of plaintiff in this action.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the order isreversed, on the law, with costs, plaintiff's cross motion for summary judgment dismissing thethird-party complaint granted and defendant's motion to disqualify attorney Mo Athari fromrepresenting plaintiff denied.