212 E. 10 N. Y. Bar Ltd. v. Jeffrey Samel & Associates

249 A.D.2d 220, 671 N.Y.S.2d 751, 1998 N.Y. App. Div. LEXIS 4680

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 28, 1998
• Status: Published

Opinion

—Order, Supreme Court, New York County (Richard Braun, J.), entered on or about December 15, 1997, which, in an action for legal malpractice, denied defendants’ motion to disqualify plaintiffs attorneys, unanimously affirmed, without costs.

Defendants, who represented plaintiff as trial counsel in the underlying action, have impleaded the attorneys who successfully represented plaintiff on the appeal in the underlying action and are now representing plaintiff in this malpractice action. Defendants claim that if the adverse judgment after their trial forced plaintiff into bankruptcy then any damages sustained by plaintiff attributable to the bankruptcy were caused not by their alleged malpractice at trial but by plaintiffs attorneys’ failure to advise plaintiff to procure an appeal bond, or by plaintiffs failure to follow such advice if given, or by plaintiffs attorneys’ failure to seek an expedited appeal. In view of plaintiffs attorneys’ proof that they were not consulted and retained until almost three months after plaintiff filed for bankruptcy, it is dubious whether the financial repercussions of the bankruptcy could have been avoided by any such advice or action, making it speculative for defendants to assert a potential conflict of interest between plaintiff and its attorneys (see, O’Donnell, Fox & Gartner v R-2000 Corp., 198 AD2d 154; see also, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 446). Nor is plaintiffs attorneys’ status in the action as a party a basis for finding that their testimony will be necessary, or otherwise a sufficient ground for their disqualification (see, Transcontinental Constr. Servs. v McDonough, Marcus, Cohn & Tretter, 216 AD2d 19). Concur— Sullivan, J. P., Rosenberger, Nardelli, Rubin and Andidas, JJ.