| Scopin v Goolsby |
| 2011 NY Slip Op 07212 [88 AD3d 782] |
| October 11, 2011 |
| Appellate Division, Second Department |
| Helene Scopin, Respondent, v Sonnie Leroy Goolsby et al.,Appellants. (Action No. 1.) Syndee Kelly, Respondent, v Sonnie Leroy Goolsby et al.,Appellants. (Action No. 2.) |
—[*1] Sciretta & Venterina, LLP, Staten Island, N.Y. (Marilyn Venterina of counsel), for appellantsSonnie Leroy Goolsby and Metropolitan Suburban Bus Authority in both actions. Matthew T. Fella, Farmingdale, N.Y., for respondent Helene Scopin in action No. 1. Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), for respondentSyndee Kelly in action No. 2.
In two related actions to recover damages for personal injuries, which were joined for trial,(1) Helene Scopin, the plaintiff in action No. 1 and a defendant in action No. 2, appeals, aslimited by her brief, and Sonnie Leroy Goolsby and Metropolitan Suburban Bus Authority,defendants in both actions, separately appeal, as limited by their brief, from so much of an orderof the Supreme Court, Nassau County (Galasso, J.), entered July 9, 2010, as denied that branchof Helene Scopin's motion which was to disqualify the plaintiff's counsel in action No. 2, and (2)Sonnie Leroy Goolsby and Metropolitan Suburban Bus Authority also appeal, as limited by theirbrief, from so much of an order of the same court, also entered July 9, 2010, as denied thosebranches of their motion which were for summary judgment dismissing the complaints in bothactions insofar as asserted against them.
Ordered that the appeal by the defendants Sonnie Leroy Goolsby and Metropolitan SuburbanBus Authority from so much of the first order as denied that branch of the motion of HeleneScopin which was to disqualify the plaintiff's counsel in action No. 2 is dismissed, as thosedefendants are not aggrieved by that portion of the first order (see CPLR 5511); and it isfurther,[*2]
Ordered that the first order is reversed insofar as appealedfrom by Helene Scopin, on the facts and in the exercise of discretion, and that branch of themotion of Helene Scopin which was to disqualify the plaintiff's counsel in action No. 2 isgranted; and it is further,
Ordered that the second order is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to Helene Scopin, payable by Sonnie Leroy Goolsbyand Metropolitan Suburban Bus Authority.
On January 9, 2008, a collision occurred in Rockville Centre between a vehicle driven byHelene Scopin and a bus owned by the defendant Metropolitan Suburban Bus Authority andoperated by the defendant Sonnie Leroy Goolsby (hereinafter together the bus defendants).Syndee Kelly was a passenger in Scopin's vehicle. Both vehicles were proceeding northbound onSouth Park Avenue, and Scopin tried to pass the bus by driving her vehicle around it.
A few days after the incident, Scopin and Kelly met with an attorney from the law firm ofGruenberg & Kelly, P.C. (hereinafter the Gruenberg firm). During this meeting Scopin wasadvised that the Gruenberg firm could not file a summons and complaint representing both herand Kelly in an action against the bus defendants, and that she would have to retain counsel ofher own. Nevertheless, the Gruenberg firm served a notice of claim on behalf of both Kelly andScopin, identifying itself as their attorneys. Scopin later retained separate counsel.
In or about August 2008, Scopin, represented by attorney Matthew T. Fella, and Kelly,represented by the Gruenberg firm, commenced actions No. 1 and No. 2, respectively, against theMetropolitan Suburban Bus Authority and Goolsby. In their answer to Scopin's complaint, thebus defendants raised as an affirmative defense that the collision had been caused by Scopin. Thebus defendants pleaded a similar affirmative defense in their answer in action No. 2. In October2009 the bus defendants moved to disqualify the Gruenberg firm from representing any party inthe actions. In opposition, Kelly submitted, among other things, an affidavit from Scopin, swornto on November 10, 2008, asserting that during her consultation with the Gruenberg firm, she"did not reveal any information, details or confidences that would be a detriment to theprosecution of [her] separate action as a plaintiff, nor [did she] believe that any actual or apparentconflict of interest exist [ed] from [her] consultation with [the Gruenberg firm]." Kelly submittedan affidavit sworn to on November 7, 2008, in which she stated that she had instructed theGruenberg firm not to name Scopin as a defendant in action No. 2, and that she adhered to thatposition even after its legal ramifications were explained to her. In January 2010 the SupremeCourt denied the bus defendants' motion to disqualify the Gruenberg firm. In an order enteredMarch 16, 2010, the Supreme Court granted Kelly's motion for leave to amend the complaint inaction No. 2 to add Scopin as a defendant. Thereafter, Scopin moved, inter alia, to disqualify theGruenberg firm in action No. 2 on the ground that the firm had a conflict of interest. TheSupreme Court denied that branch of Scopin's motion.
"Although ' [a] party's entitlement to be represented in ongoing litigation by counsel of his orher own choosing is a valued right which should not be abridged,' such right will not supersede aclear showing that disqualification is warranted" (Matter of Marvin Q., 45 AD3d 852, 853 [2007], quoting Campolongo v Campolongo, 2 AD3d476, 476 [2003]; see Greene v Greene, 47 NY2d 447, 453 [1979]; Matter of Astor Rhinebeck Assoc., LLC vTown of Rhinebeck, 85 AD3d 1160, 1161 [2011]; Horn v Municipal Info.Servs., 282 AD2d 712 [2001]). "[A] party seeking disqualification of its adversary's lawyermust prove: (1) the existence of a prior attorney-client relationship between the moving party andopposing 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 123, 131 [1996]; see Rules ofProfessional Conduct [22 NYCRR 1200.0] rule 1.9 [a]; Falk v Chittenden, 11 NY3d 73, 78 [2008]; Jamaica Pub. Serv.Co. v AIU Ins. Co., 92 NY2d 631, 636 [1998]). Here, Scopin and Kelly met with theGruenberg firm shortly after the incident, and that firm served a notice of claim on Scopin'sbehalf, identifying itself as her attorney. Although Kelly originally instructed the Gruenberg firmnot to name Scopin as a defendant in action No. 2, she later [*3]changed her position and an amended complaint was filed namingScopin as a defendant. Scopin thus established that the interests of the Gruenberg firm's currentclient, Kelly, were now in direct conflict with those of its former client, Scopin. Under thesecircumstances, it was an improvident exercise of discretion for the Supreme Court to deny thatbranch of Scopin's motion which was to disqualify the Gruenberg firm (see Horn v MunicipalInfo. Servs., 282 AD2d at 712; cf.Zutler v Drivershield Corp., 15 AD3d 397 [2005]).
The Supreme Court, however, properly denied those branches of the bus defendants' motionwhich were for summary judgment dismissing the complaint in action No. 1 and dismissing thecomplaint in action No. 2 insofar as asserted against them. In support of those branches of theirmotion, the bus defendants submitted evidence that Scopin drove her car across a double yellowline in order to pass the bus. The bus defendants failed, however, to establish, prima facie, that ifScopin were negligent in the operation of her vehicle, such negligence was the sole proximatecause of the collision. Specifically, the bus defendants failed to establish, prima facie, thatGoolsby was free from negligence in his operation of the bus and that negligence on his part wasnot also a proximate cause of the collision (see Ruthinoski v Brinkman, 63 AD3d 900, 901-902 [2009]; cf. O'Connor v Lopane, 24 AD3d426 [2005]).
The parties' remaining contentions either are without merit or need not be addressed in lightof the foregoing. Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.