Moyal v. Sullo

140 A.D.3d 642, 33 N.Y.S.3d 711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 2016
• Docket: 1618N 157850/14
• Status: Published

Opinion

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered February 1, 2016, which granted the motion of defendants Robert Malta and GMD 444 LLC to disqualify Trachtenberg, Rodes & Friedberg LLP (Trachtenberg) from representing defendant Joseph Sullo, unanimously affirmed, with costs.

The motion court providently exercised its discretion by disqualifying Trachtenberg (see generally Ferolito v Vultaggio, 99 AD3d 19, 27 [1st Dept 2012]). The former joint representation of Malta and Sullo and the present litigation are substantially related and the interests of Malta and Sullo are materially adverse in this action (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 130-131 [1996]; Matter of Strasser, 129 AD3d 457 [1st Dept 2015]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9). The conflicts waiver contained in the engagement letter was insufficient to show that Malta knowingly waived any objection to Trachtenberg’s continued representation of Sullo in this matter (cf. St. Barnabas Hosp. v New York City Health & Hosps. Corp., 7 AD3d 83, 90-92 [1st Dept 2004]).

We have considered Sullo’s remaining arguments and find them unavailing.

Concur — Friedman, J.P., Andrias, Saxe, Richter and Kahn, JJ.