92 A.D.2d 913 | N.Y. App. Div. | 1983
— In an action, inter alla, for an accounting of commissions allegedly due, and to recover said amount, plaintiff appeals from an order of the Supreme Court, Nassau County (Kelly, J.), dated January 13, 1982, which denied its motion for a default judgment and an inquest and granted that portion of defendants’ cross motion which sought a dismissal of the action pursuant to CPLR 3215 (subd [c]). Defendants cross-appeal from the failure of the court to have addressed that branch of their cross motion which sought to disqualify plaintiff’s attorney. Order modified, on the law, by adding thereto a provision that plaintiff’s attorney, Myron Levenstein, is disqualified from representing plaintiff in this or any subsequent proceeding against defendants involving the causes of action set forth in the instant complaint. As so modified, order affirmed, without costs or disbursements. Special Term properly dismissed the complaint for want of prosecution since plaintiff, Narel Apparel Ltd., Inc. (hereinafter Narel), failed to show a legally justifiable excuse for its failure to enter judgment against defendants within one year after their default (CPLR 3215, subd [c]; Winkelman vH & S Beer & Soda Discounts, 91 AD2d 660). The failure to address that branch of defendants’ cross motion which sought the disqualification of Narel’s attorney was error, however, inasmuch as the period of limitation within which Narel may pursue its claims has not yet expired. Narel is the former exclusive sales representative for women’s clothing of defendant manufacturers. It seeks to recover commissions allegedly due it for the period from December 31, 1978 through July 27, 1979, as well as damages for the loss of trade, customers, business and reputation sustained through defendants’ breach of their agreement with Narel and their attempts to interfere with and destroy the effective unified operation of Narel’s business. Narel’s sole shareholders, until approximately January, 1980, were Ned Klebanoff, Harvey Turkheimer and Robert Pierce. In that month, Turkheimer and Pierce sold their shares and Klebanoff became the sole shareholder of Narel. Pierce and Turkheimer incorporated to form the Hamlet Group (hereinafter Hamlet), which supplanted Narel as sales agent for defendants’ women’s clothing division in August, 1980. Myron Levenstein acted as both the attorney and accountant for Narel when it was working on behalf of defendant American Utex. Additionally, Levenstein acted as personal attorney and accountant for Messrs. Pierce, Klebanoff and Turkheimer, having performed such services as preparing all of their income tax returns and drafting wills for Turkheimer and Pierce. In sum, Levenstein and his trio of clients ofttimes discussed personal and business matters and he served in the general capacity of advisor and confidant to them. In November, 1979, when Klebanoff indicated that he no longer wished to remain a sales represéntative, although he wished to retain the corporate existence of Narel, Levenstein drafted the termination agreement. Levenstein participated in meetings with Klebanoff, Pierce and Turkheimer and served as moderator of the parties’ discussions. Among the specific topics discussed was Narel’s claims against American Utex for unpaid commissions, one of the issues raised by
