Restivo et al v. Nassau County et al
Filing
287
ORDER finding as moot 260 Motion to Amend/Correct/Supplement; For the reasons set forth herein, the Court finds that Plaintiffs' motion (Docket Entry 260) seeking to disqualify the County Attorney's Office from representing the County is MOOT. So Ordered by Judge Joanna Seybert on 12/8/2015. C/ECF (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------X
JOHN RESTIVO and DENNIS HALSTEAD,
ET AL.,
Plaintiffs,
-against-
ORDER
06-CV-6720(JS)(SIL)
NASSAU COUNTY, CAROLANN HESSEMAN,
AS EXECUTRIX FOR THE ESTATE OF
JOSEPH VOLPE, in his individual
capacity, and CHARLIE FRAAS, in
his individual capacity, ET AL.,
Defendants.
------------------------------------X
SEYBERT, District Judge:
Pending before the Court are Plaintiffs John Restivo and
Dennis Halstead’s (“Plaintiffs”) motion (Docket Entry 260) seeking
clarification with respect to the Court’s minute entry following
oral argument about a post-judgment conflict of interest.
For the
foregoing reasons, Plaintiffs’ motion is FOUND TO BE MOOT.
On March 17, 2015, the Court allowed the law firm of
Freeman, Nooter & Ginsberg (“FNG”) to withdraw after it made an
argument in its briefs that was contrary to the interests of one
of its clients.
FNG represented both Nassau County and Carolann
Hessemann as executrix of the Estate of Joseph Volpe (the Estate).
In briefs submitted by FNG in support of a motion to stay the
judgment pending appeal, the County took the position that it would
not indemnify the Estate for the judgment awarded in this action.
(See
Def.’s
Mot.
to
Stay,
Docket
Entry
243,
at
4-5;
Defs.’
Supplemental Br., Docket Entry 246, at 9.)
Subsequently, Plaintiffs moved to disqualify defense
counsel and FNG moved to withdraw.
(Docket Entries 244, 257).
In
a minute entry following oral argument on the motions, the Court
noted that it had allowed FNG to withdraw from representing both
the County and the Estate.
In addition, the Court noted that the
County Attorney’s Office was disqualified from representing the
Estate.
(Mar. 17, 2015 Minute Entry, Docket Entry 259.)
On March 19, 2015, Plaintiffs submitted their motion for
clarification.
Plaintiffs argue in the motion that because an
actual conflict arose, the County Attorney’s Office should have
been disqualified from representing Nassau County, in addition to
the Estate.
(Pls.’ Mar. 19, 2015 Ltr., Docket Entry 260.)
However,
the
parties
subsequently
entered
into
a
stipulation on June, 25, 2015 in which the County changed its
position and agreed to indemnify the Estate for the Judgment
Plaintiffs were awarded in this action, subject to any decision by
the Second Circuit on parties’ pending appeals.
(See Stipulation
and Consent Decree, Docket Entry 276, at 3.) The Parties agreement
effectively eliminated the conflict of interest between the County
and the Estate, since the indemnity issue is now resolved and the
Estate is no longer prejudiced.
See N. E. Marine, Inc. v. Boody,
No. 09-CV-5600, 2012 WL 4482794, at *15 (E.D.N.Y. July 5, 2012)
2
report and recommendation adopted, No. 09-CV-5600, 2012 WL 4482772
(E.D.N.Y. Sept. 27, 2012).
Therefore, the Court finds that
Plaintiffs’ motion (Docket Entry 260) seeking to disqualify the
County Attorney’s Office from representing the County is MOOT.1
SO ORDERED.
DATED:
December
8 , 2015
Central Islip, New York
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Plaintiffs also ask the Court to correct an undisputed error
in the Court’s March 17, 2015 Minute Entry regarding the
description of the Estate’s motions to stay judgment pending
appeal. The Court has done so. (#5 now reads “Defendants’”
motions to stay in place of “Plaintiff’s” motions to stay.
The corrected minute entry has been regenerated.)
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