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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: March 21, 2020

Conflict Not Disqualifying When Prior Representation Unrelated to Current One

On March 4, 2020, Justice Emerson of the Suffolk County Commercial Division issued a decision in Shoreham Hills, LLC v. Sagaponack Dream House, LLC, 2020 NY Slip Op. 50326(U), holding that a conflict was not disqualifying when the prior representation was unrelated to the current representation, explaining:

The plaintiffs seeks disqualification of the defendants’ attorney, John Simoni, on the ground that he represented Roboco, LLC (“Roboco”), an entity owned by the principal of Shoreham, in an action in this court entitled Roboco, LLC v ABCC Drilling LLC and Roland White, in arbitration and mediation in 2018, and in multiple AIA contract preparations and negotiations.

The rule is well established that a party seeking to disqualify an attorney or a law firm on the ground of prior representation must show (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 the former client are materially adverse. The moving party must satisfy all three criteria in order to give rise to a presumption of disqualification of opposing counsel.

It is undisputed that John Simoni, who now represents SDH, MP, and DH, has represented Roboco, which is owned by the principal of Shoreham, whose interests are adverse to those of SDH, MP, and DH. Thus, the only issue before the court is whether the plaintiffs have demonstrated that the matters involved in Mr. Simoni’s representation of SDH, MP, and DH are substantially related to his representation of Roboco. They have not. The plaintiffs’ generalized assertions that a conflict exists are insufficient to justify disqualification. Moreover, the court’s examination of the complaint in Roboco, LLC v ABCC Drilling LLC and Roland White reveals that Robocco, a general contractor, sued a subcontractor for failing to perform its obligations under a subcontract to provide and install a geothermal system on an entirely different parcel of real property than the one that is the subject of this action. The issues in that action are completely unrelated to the issues in this action. Accordingly, the branch of the cross motion which is to disqualify the defendants’ counsel is denied.

(Internal citations omitted).

We both bring and defend motions relating to attorney conflicts and do appeals of the decisions on those motions. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you face a situation where counsel may be–or is accused of being–conflicted.

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