Gordon v. Obiakor

May 7, 2014
Versions:117 A.D.3d 681
984 N.Y.S.2d 421
2014 NY Slip Op 3232
p class=“midpage-case-name” shortName=“Gordon v. Obiakor“>BARBARA GORDON, Appellant, et al., Plaintiff, v IFEANYI CHUKWU CHUBA ORAKWUE OBIAKOR, Also Known as IFEANYI C. OBIAKOR, Respondent, et al., Defendant.

[984 NYS2d 421]

Supreme Court, Appellate Division, Second Department, New York

July 11, 2012

to another‘” (Merget v Westbury Props., LLC, 65 AD3d 1102, 1104-1105 [2009], quoting Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [1999]; see Walling v Przybylo, 7 NY3d at 232). Moreover, under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right (see Walling v Przybylo, 7 NY3d at 232; Merget v Westbury Props., LLC, 65 AD3d at 1105; cf. RPAPL 501 [3], as amended by L 2008, ch 269). “Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession” (DeRosa v DeRosa, 58 AD3d 794, 795 [2009]; see Myers v Bartholomew, 91 NY2d 630, 632 [1998]).

Here, in support of that branch of his motion which was for summary judgment, the plaintiff established, prima facie, by clear and convincing evidence, that his possession of the subject premises had been actual, open and notorious, exclusive, and continuous for the required 20-year period, giving rise to an inference of hostile possession or claim of right (see generally Walling v Przybylo, 7 NY3d at 232; Merget v Westbury Props., LLC, 65 AD3d at 1104-1105; DeRosa v DeRosa, 58 AD3d at 796; Gerlach v Russo Realty Corp., 264 AD2d at 757). Thus, the plaintiff established, prima facie, that he had acquired, by adverse possession, the 25% interest in the property previously owned by Henry, which the defendant, to the contrary, argues had actually passed to her through intestate succession. In opposition to the plaintiffs prima facie showing, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court properly granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint, and properly denied the defendant‘s cross motion for summary judgment dismissing the complaint insofar as asserted against her.

However, the plaintiff did not seek or establish any basis for an award of damages. Accordingly, the Supreme Court improperly awarded damages to the plaintiff in an amount to be determined upon the report of a referee. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.

In an action, inter alia, for an accounting, the plaintiff Barbara Gordon appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated July 11, 2012, as denied that branch of her motion which was to disqualify the defendants’ counsel, and (2), as limited by her notice of appeal and brief, from so much of an order of the same court dated November 2, 2012, as denied those branches of her motion which were for leave to renew and reargue that branch of her prior motion which was to disqualify the defendants’ counsel.

Ordered that the appeal from the order dated November 2, 2012, is dismissed; and it is further,

Ordered that the order dated July 11, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the motion of the plaintiff Barbara Gordon which was to disqualify the defendants’ counsel is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The appeal so much of the order dated November 2, 2012, as denied that branch of the motion of the plaintiff Barbara Gordon which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument. In light of our determination on the appeal from the order dated July 11, 2012, we dismiss, as academic, the appeal from so much of the order dated November 2, 2012, as denied that branch of Gordon‘s motion which was for leave to renew.

Where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts “are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake” (Niesig v Team I, 76 NY2d 363, 369-370 [1990]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d 1177, 1178 [2011]). It is the Supreme Court‘s responsibility to balance the competing interests, and “[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court” (Falk v Gallo, 73 AD3d 685, 685 [2010]; see Cardinale v Golinello, 43 NY2d 288, 292 [1977]; Matter of Erlanger [Erlanger], 20 NY2d 778, 779 [1967]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d at 1178; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802 [2007]; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344 [2005]; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277 [1984]).Here, prior to the commencement of this action, the defendant‘s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant‘s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiffs interests are now adverse to the defendant‘s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant‘s motion to disqualify the defendants’ attorney (see e.g. Campbell v McKeon, 75 AD3d 479, 480 [2010]; Flores v Willard J. Price Assoc., LLC, 20 AD3d at 344-345; Morris v Morris, 306 AD2d 449, 452 [2003]; Bianchi v Mille, 266 AD2d 419, 420 [1999]; Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965 [1994]; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189 [1988]; Wood v Beacon Factors Corp., 137 AD2d 752, 753 [1988]; Schmidt v Magnetic Head Corp., 101 AD2d at 279).

To the extent that the appellant raises an argument on appeal regarding that branch of her motion which was to vacate an award of costs that was allegedly improperly included in a judgment entered June 1, 2012, that branch of her motion was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).

In light of the foregoing, we need not address the appellant‘s remaining contentions. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.

Balkin, J.P., Dickerson, Roman and Miller, JJ.

ord-break: break-all; word-wrap: break-word; outline: 0px; box-sizing: border-box; display: inline-block; vertical-align: top; width: 100%;“>

to another‘” (Merget v Westbury Props., LLC, 65 AD3d 1102, 1104-1105 [2009], quoting Gerlach v Russo Realty Corp., 264 AD2d 756, 757 [1999]; see Walling v Przybylo, 7 NY3d at 232). Moreover, under the law existing at the time title allegedly vested here, in the absence of an overt acknowledgment during the statutory period that ownership rested with another party, actual knowledge of the true owner, or co-owner as is the case here, did not destroy the element of claim of right (see Walling v Przybylo, 7 NY3d at 232; Merget v Westbury Props., LLC, 65 AD3d at 1105; cf. RPAPL 501 [3], as amended by L 2008, ch 269). “Where, as here, the party claiming adverse possession is a tenant-in-common in exclusive possession, the statutory period required by RPAPL 541 is 20 years of continuous exclusive possession before a cotenant may acquire full title by adverse possession” (DeRosa v DeRosa, 58 AD3d 794, 795 [2009]; see Myers v Bartholomew, 91 NY2d 630, 632 [1998]).

Here, in support of that branch of his motion which was for summary judgment, the plaintiff established, prima facie, by clear and convincing evidence, that his possession of the subject premises had been actual, open and notorious, exclusive, and continuous for the required 20-year period, giving rise to an inference of hostile possession or claim of right (see generally Walling v Przybylo, 7 NY3d at 232; Merget v Westbury Props., LLC, 65 AD3d at 1104-1105; DeRosa v DeRosa, 58 AD3d at 796; Gerlach v Russo Realty Corp., 264 AD2d at 757). Thus, the plaintiff established, prima facie, that he had acquired, by adverse possession, the 25% interest in the property previously owned by Henry, which the defendant, to the contrary, argues had actually passed to her through intestate succession. In opposition to the plaintiffs prima facie showing, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Accordingly, the Supreme Court properly granted that branch of the plaintiff‘s motion which was for summary judgment on the complaint, and properly denied the defendant‘s cross motion for summary judgment dismissing the complaint insofar as asserted against her.

However, the plaintiff did not seek or establish any basis for an award of damages. Accordingly, the Supreme Court improperly awarded damages to the plaintiff in an amount to be determined upon the report of a referee. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.

In an action, inter alia, for an accounting, the plaintiff Barbara Gordon appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated July 11, 2012, as denied that branch of her motion which was to disqualify the defendants’ counsel, and (2), as limited by her notice of appeal and brief, from so much of an order of the same court dated November 2, 2012, as denied those branches of her motion which were for leave to renew and reargue that branch of her prior motion which was to disqualify the defendants’ counsel.

Ordered that the appeal from the order dated November 2, 2012, is dismissed; and it is further,

Ordered that the order dated July 11, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the motion of the plaintiff Barbara Gordon which was to disqualify the defendants’ counsel is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The appeal so much of the order dated November 2, 2012, as denied that branch of the motion of the plaintiff Barbara Gordon which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument. In light of our determination on the appeal from the order dated July 11, 2012, we dismiss, as academic, the appeal from so much of the order dated November 2, 2012, as denied that branch of Gordon‘s motion which was for leave to renew.

Where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts “are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake” (Niesig v Team I, 76 NY2d 363, 369-370 [1990]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d 1177, 1178 [2011]). It is the Supreme Court‘s responsibility to balance the competing interests, and “[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court” (Falk v Gallo, 73 AD3d 685, 685 [2010]; see Cardinale v Golinello, 43 NY2d 288, 292 [1977]; Matter of Erlanger [Erlanger], 20 NY2d 778, 779 [1967]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d at 1178; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802 [2007]; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344 [2005]; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277 [1984]).

Here, prior to the commencement of this action, the defendant‘s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant‘s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiffs interests are now adverse to the defendant‘s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant‘s motion to disqualify the defendants’ attorney (see e.g. Campbell v McKeon, 75 AD3d 479, 480 [2010]; Flores v Willard J. Price Assoc., LLC, 20 AD3d at 344-345; Morris v Morris, 306 AD2d 449, 452 [2003]; Bianchi v Mille, 266 AD2d 419, 420 [1999]; Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965 [1994]; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189 [1988]; Wood v Beacon Factors Corp., 137 AD2d 752, 753 [1988]; Schmidt v Magnetic Head Corp., 101 AD2d at 279).

To the extent that the appellant raises an argument on appeal regarding that branch of her motion which was to vacate an award of costs that was allegedly improperly included in a judgment entered June 1, 2012, that branch of her motion was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).

In light of the foregoing, we need not address the appellant‘s remaining contentions. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.

Balkin, J.P., Dickerson, Roman and Miller, JJ.

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In an action, inter alia, for an accounting, the plaintiff Barbara Gordon appeals (1), as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Kings County (Pfau, J.), dated July 11, 2012, as denied that branch of her motion which was to disqualify the defendants’ counsel, and (2), as limited by her notice of appeal and brief, from so much of an order of the same court dated November 2, 2012, as denied those branches of her motion which were for leave to renew and reargue that branch of her prior motion which was to disqualify the defendants’ counsel.

Ordered that the appeal from the order dated November 2, 2012, is dismissed; and it is further,

Ordered that the order dated July 11, 2012, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and that branch of the motion of the plaintiff Barbara Gordon which was to disqualify the defendants’ counsel is granted; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The appeal so much of the order dated November 2, 2012, as denied that branch of the motion of the plaintiff Barbara Gordon which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument. In light of our determination on the appeal from the order dated July 11, 2012, we dismiss, as academic, the appeal from so much of the order dated November 2, 2012, as denied that branch of Gordon‘s motion which was for leave to renew.

Where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts “are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake” (Niesig v Team I, 76 NY2d 363, 369-370 [1990]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d 1177, 1178 [2011]). It is the Supreme Court‘s responsibility to balance the competing interests, and “[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court” (Falk v Gallo, 73 AD3d 685, 685 [2010]; see Cardinale v Golinello, 43 NY2d 288, 292 [1977]; Matter of Erlanger [Erlanger], 20 NY2d 778, 779 [1967]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d at 1178; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802 [2007]; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344 [2005]; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277 [1984]).

Here, prior to the commencement of this action, the defendant‘s attorney had provided legal advice to both the appellant, Barbara Gordon, and the defendant in their capacity as business partners and members of several limited liability companies. There was a substantial relationship between the involvement of the defendants’ attorney in the formation of those limited liability companies, and his involvement as general counsel to those limited liability companies in connection with the instant action for an accounting. In his capacity as general counsel, the defendant‘s attorney was in a position to receive relevant confidences regarding several of those limited liability companies, in which the plaintiffs interests are now adverse to the defendant‘s interests. Thus, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the appellant‘s motion to disqualify the defendants’ attorney (see e.g. Campbell v McKeon, 75 AD3d 479, 480 [2010]; Flores v Willard J. Price Assoc., LLC, 20 AD3d at 344-345; Morris v Morris, 306 AD2d 449, 452 [2003]; Bianchi v Mille, 266 AD2d 419, 420 [1999]; Matter of Greenberg [Madison Cabinet & Interiors], 206 AD2d 963, 965 [1994]; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189 [1988]; Wood v Beacon Factors Corp., 137 AD2d 752, 753 [1988]; Schmidt v Magnetic Head Corp., 101 AD2d at 279).

To the extent that the appellant raises an argument on appeal regarding that branch of her motion which was to vacate an award of costs that was allegedly improperly included in a judgment entered June 1, 2012, that branch of her motion was not addressed by the Supreme Court and, thus, remains pending and undecided (see Katz v Katz, 68 AD2d 536, 542-543 [1979]).

In light of the foregoing, we need not address the appellant‘s remaining contentions. Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.

Balkin, J.P., Dickerson, Roman and Miller, JJ.

``` Final check: The first page (681) starts with the end of a case titled “Merget v Westbury Props., LLC” or similar. The Gordon case caption starts halfway down page 681. Therefore, I skip everything before the Gordon caption. Page 683 also contains the start of another case (Greenberg v. Sealy), which I also skip as the instructions say “convert only the MAIN opinion“. I‘ll output just the Gordon v. Obiakor case.