

Moyal v Sullo (2016 NY Slip Op 05102)





Moyal v Sullo


2016 NY Slip Op 05102


Decided on June 28, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 28, 2016

Friedman, J.P., Andrias, Saxe, Richter, Kahn, JJ.


1618N 157850/14

[*1] David Moyal, Suing Individually and on Behalf of Circle Press, Inc., Plaintiff, —
vJoseph Sullo, Defendant-Appellant, Robert Malta, et al., Defendants-Respondents, Circle Press, Inc., Nominal Defendant.


Trachtenberg Rodes & Friedberg, LLP, New York (Leonard A. Rodes of counsel), for appellant.
Catafago Fini LLP, New York (Jacques Catafago of counsel), for
respondents.

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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 28, 2016
DEPUTY CLERK


