Scopin v. GoolsbyScopin v. Goolsby
Helene Scopin, Respondent, v Sonnie Leroy Goolsby et al., Appellаnts. (Action No. 1.) Syndee Kelly, Respondent, v Sonnie Leroy Goolsby et al., Appellants. (Action No. 2.) [930 NYS2d 639]
A few days after the incident, Scopin and Kelly met with an attorney from the law firm of Gruenberg & Kelly, P.C. (hereinafter the Gruеnberg firm). During this meeting Scopin was advised that the Gruenberg firm could not file a summons and complaint representing bоth her and Kelly in an action against the bus defendants, and that she would have to retain counsel of her own. Nevertheless, the Gruenberg firm served a notice of claim on behalf of both Kelly and Scopin, identifying itself as their attorneys. Scopin later retained separate counsel.
In or about August 2008, Scopin, represеnted by attorney Matthew T. Fella, and Kelly, represented by the Gruenberg firm, commenced actions No. 1 and No. 2, respectively, against the Metropolitan Suburban Bus Authority and Goolsby. In their answer to Scopin‘s complaint, the bus defendants raised as an affirmative defense that the collision had been caused by Scopin. Thе bus defendants pleaded a similar affirmative defense in their answer in action No. 2. In October 2009 the bus defendаnts moved to disqualify the Gruenberg firm from representing any party in the actions. In opposition, Kelly submitted, among other things, an affidavit from Scopin, sworn to on November 10, 2008, asserting that during her consultation with the Gruenberg firm, she “did not revеal any information, details or confidences that would be a detriment to the prosecution of [her] sеparate action as a plaintiff, nor [did she] believe that any actual or apparent cоnflict of interest exist[ed] from [her] consultation with [the Gruenberg firm].” Kelly submitted an affidavit sworn to on November 7, 2008, in which she stated that she had instructed the Gruenberg firm not to name Scopin as a defendant in action No. 2, and that she adhered to that position even after its legal ramifications were explained to her. In January 2010 the Supreme Court denied the bus defendants’ motion to disqualify the Gruenberg firm. In an order entered March 16,
“Although ‘[a] party‘s entitlеment to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged,’ such right will not supersede a clear showing that disqualification is warranted” (Matter of Marvin Q., 45 AD3d 852, 853 [2007], quoting Campolongo v Campolongo, 2 AD3d 476, 476 [2003]; see Greene v Greene, 47 NY2d 447, 453 [1979]; Matter of Astor Rhinebeck Assoc., LLC v Town of Rhinebeck, 85 AD3d 1160, 1161 [2011]; Horn v Municipal Info. Servs., 282 AD2d 712 [2001]). “[A] party seeking disqualification of its adversary‘s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing 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
The Supreme Court, however, properly dеnied those branches of the bus defendants’ motion which were for summary judgment dismissing the complaint in action No. 1 аnd dismissing the complaint in action No. 2 insofar as asserted against them. In support of those branches of thеir motion, the bus defendants submitted evidence that Scopin drove her car across a double yellow line in order to pass the bus. The bus defendants
The parties’ remaining contentions either are without merit or need not be addressed in light of the foregoing.
Rivera, J.P., Balkin, Hall and Cohen, JJ., concur.