| Macy's Inc. v J.C. Penny Corp., Inc. |
| 2013 NY Slip Op 04891 [107 AD3d 616] |
| June 27, 2013 |
| Appellate Division, First Department |
| Macy's Inc. et al., Respondents, v J.C. PennyCorporation, Inc., Appellant. |
—[*1] Jones Day, New York (Michael A. Platt of counsel), for respondents.
Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 11,2012, which, to the extent appealable, denied defendant's motion to disqualify plaintiffs'counsel, unanimously affirmed, with costs.
The portion of the subject order that denied defendant's oral application tosupplement the record did not resolve a motion made on notice, so no interlocutoryappeal lies therefrom as of right (CPLR 5701 [a] [2]; see Sholes v Meagher, 100NY2d 333, 336 [2003]; Smith vUnited Church of Christ, 95 AD3d 581 [1st Dept 2012], lv denied anddismissed 19 NY3d 940 [2012]; Manning v City of New York, 29 AD3d 361 [1st Dept2006], lv denied 7 NY3d 708 [2006]). Defendant's remedy was to either moveSupreme Court to vacate the order that denied its application, the denial of which wouldhave been appealable (see Sholes, 100 NY2d at 335), or to move for leave toappeal to this Court by permission (see CPLR 5701 [c]; AllianceBernstein L.P. v Atha,100 AD3d 499 [1st Dept 2012]; Manning, 29 AD3d at 361), and defendantdid not avail itself of either remedy.
Supreme Court providently exercised its discretion in denying defendant's motion todisqualify Jones Day from representing plaintiffs in this action because Jones Dayinformed defendant about potential conflicts, and defendant waived its right to protestthereto (see McElduff vMcElduff, 101 AD3d 832, 833 [2d Dept 2012]; Harris v Sculco, 86 AD3d481 [1st Dept 2011]). By agreement dated March 7, 2008 Jones Day undertook torepresent defendant regarding certain "intellectual property litigation and trade markregistration" in Asia. That agreement expressly informed defendant about the possibilitythat Jones Day's present or future clients "may be direct competitors of [defendant] orotherwise may have business interests that are contrary to [defendant]'s interests," and"may seek to engage [Jones Day] in connection with an actual or potential transaction orpending or potential litigation or other dispute resolution proceeding in which suchclient's interests are or potentially may become adverse to [defendant]'s interests." Thatagreement unambiguously explained that Jones Day could not represent defendant unlessdefendant confirmed this arrangement was amenable to defendant, thereby "waiv[ing]any conflict of interest that exists or might be asserted to exist and any other basis thatmight be asserted to preclude, challenge or otherwise disqualify Jones Day in anyrepresentation of any other client with respect to any such matter." The agreement alsoprovided,[*2]"However, please note that your instructingus or continuing to instruct us on this matter will constitute your full acceptance of theterms set out above and attached." It is undisputed that Jones Day continued to representdefendant with respect to defendant's Asian trademark portfolio thereafter and, thus,defendant accepted the terms of the agreement, including waiver of the alleged conflict atissue.
Moreover, the interests of defendant that Jones Day represents, namely intellectualproperty litigation and trademark registration exclusively in Asia, do not conflict withdefendant's interests at issue here (see Develop Don't Destroy Brooklyn v Empire State Dev.Corp., 31 AD3d 144, 152 [1st Dept 2006], lv denied 8 NY3d 802[2007]; Asset Alliance Corp. v Ervine, 279 AD2d 365 [1st Dept 2001], lvdismissed 96 NY2d 792 [2001]), and are entirely unrelated (see Tekni-Plex, Inc.v Meyner & Landis, 89 NY2d 123, 130 [1996]; Reem Contr. Corp. v Resnick Murray St. Assoc., 43 AD3d369, 371 [1st Dept 2007]; Medical Capital Corp. v MRI Global Imaging, Inc., 27 AD3d427, 428 [2d Dept 2006]; St. Barnabas Hosp. v New York City Health & Hosps. Corp., 7AD3d 83, 89 [1st Dept 2004]).
Plaintiffs' argument that this appeal should be dismissed on the ground of "laches" iswithout merit. Laches is an affirmative defense to an equitable claim that is stale and isnot a proper ground for dismissal of an appeal, and, in any event, defendant timelynoticed and perfected this appeal (see Saratoga County Chamber of Commerce vPataki, 100 NY2d 801, 816 [2003], cert denied 540 US 1017 [2003]; 22NYCRR 600.11 [a] [3]). Also unavailing is plaintiffs' argument that this appeal shouldbe dismissed as moot because it was not heard until after the trial commenced (seeMagjuka v Greenberger, 46 AD2d 867 [1st Dept 1974]). Concur—Gonzalez,P.J., Renwick, DeGrasse, Manzanet-Daniels and Feinman, JJ.