Anderson v. The City Of New York , et al
MEMORANDUM AND ORDER granting 46 Motion to Disqualify Counsel. For the reasons set forth above, the defendants' motion to disqualify the Lamonsoff Firm is granted. This action is stayed for thirty days to give Mr. Anderson time to retain new counsel. SO ORDERED. (Attorney Jessica Massimi terminated.) (Signed by Magistrate Judge James C. Francis on 9/29/2017) Copies Transmitted this Date By Chambers. (anc) Modified on 9/29/2017 (anc).
Mr. Anderson alleges that on April 17, 2014, the defendants
assaulted him in his cell at the MDC, striking and kicking him on
his back, arms, legs, and body.
(Complaint, ¶¶ 15, 20-21).
alleges that the defendants then made falsely represented to the
New York County District Attorney’s Office that he instigated the
altercation by attacking the officers, which caused him to be
charged with assault, among other crimes.
(Complaint, ¶¶ 22-28).
The charges, which were ultimately dismissed, caused him to be
incarcerated for an additional seven months.
(Complaint, ¶ 29).
CO Grant denies making false statements to the District Attorney’s
Office and contends that Mr. Anderson did in fact assault the
officers, justifying their use of force.
(Deposition of Shawn
Grant dated July 20, 2017 (“Grant Dep.”), attached as Exh. D to
Declaration of Christopher G. Arko dated Aug. 28, 2017 (“Arko
Decl.”), at 92-97).
CO Grant also asserts that his left knee was
injured during the incident and that he is currently in the process
of retiring because of the injury.
(Grant Dep. at 16-19).
CO Grant’s deposition was initially scheduled for June 14,
(Arko Decl., ¶ 4).
On that day, before the deposition, CO
Lamonsoff Firm had previously represented him in a personal injury
action arising out of a car accident in 2010.
(Arko Decl., ¶ 5).
When CO Grant and Mr. Arko arrived at the Lamonsoff Firm’s office
for the deposition, Mr. Arko relayed this information to Jessica
Massimi, plaintiff’s counsel at the firm, and she confirmed that
the firm had previously represented CO Grant in at least one
personal injury lawsuit.
(Arko Decl., ¶ 6; Transcript dated June
14, 2017 (“6/14/17 Tr.”), attached as Exh. B to Arko Decl., at 36).
implications of the Lamonsoff Firm’s prior representation of CO
Grant with his superiors.
(Arko Decl., ¶ 7; 6/14/17 Tr. at 4-5).
Two weeks later, on June 30, 2017, he sent Ms. Massimi an email
stating, “After looking this matter further, we will not be moving
to disqualify at this time.”
(Email of Christopher G. Arko dated
June 30, 2017 (“Arko 6/30/17 Email”), attached as part of Exh. C
to Arko Decl.).
July 20, 2017.
The parties rescheduled CO Grant’s deposition for
(Arko Decl., ¶ 12).
At CO Grant’s deposition, Ms. Massimi asked him numerous
questions -- covering more than twenty-five pages of the deposition
transcript -- about the 2010 car accident.
(Grant Dep. at 37-58,
Ms. Massimi also stated that she planned to ask for
production of medical records related to the accident.
Dep. at 78).
During a break in Ms. Massimi’s questioning, and
outside of CO Grant’s presence, Mr. Arko expressed renewed concerns
that the Lamonsoff Firm’s prior representation of CO Grant might
create a conflict of interest.
(Grant Dep. at 61-64).
Massimi dismissed Mr. Arko’s worries, explaining that she was not
personally involved in representing CO Grant in the prior action
and that she had not accessed the firm’s records from that case.
(Grant Dep. at 65, 73).
Ms. Massimi then resumed her questioning
of CO Grant, and the parties completed the deposition.
On August 17, 2017, the defendants requested a pre-motion
(Letter of Christopher G. Arko dated Aug. 17, 2017).
I denied the
application without prejudice to the filing of a formal motion to
disqualify (Order dated Aug. 21, 2017), which the defendants filed
on August 28, 2017.
When considering a motion to disqualify opposing counsel, a
court must “balance ‘a client’s right freely to choose his counsel’
Revise Clothing, Inc. v. Joe’s Jeans Subsidiary,
Inc., 687 F. Supp. 2d 381, 387 (S.D.N.Y. 2010) (quoting Hempstead
Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d
127, 132 (2d Cir. 2005)).
“[M]otions to disqualify counsel are
disfavored and subject to a high standard of proof, in part because
they can be used tactically as leverage in litigation.”
Clothing, 687 F. Supp. 2d at 388; see Scantek Medical, Inc. v.
Sabella, 693 F. Supp. 2d 235, 238 (S.D.N.Y. 2008) (“In view of
disqualify opposing counsel are subject to particularly strict
motions to disqualify inevitably cause delay, increase costs, and
interfere with a party’s right to the counsel of its choice.
Rothberg v. Phil’s Main Roofing, LLC, No. 14 Civ. 10195, 2016 WL
2344882, at *1 (S.D.N.Y. May 2, 2016); Revise Clothing, 687 F.
Supp. 2d at 388; Scantek Medical, 693 F. Supp. 2d at 238.
the party seeking disqualification bears a heavy burden, “any
doubts are to be resolved in favor of disqualification.”
v. Nagel Rice LLC, 716 F. Supp. 2d 228, 231-32 (S.D.N.Y. 2010);
accord Hull v. Celanese Corp., 513 F.2d 568, 571 (2d Cir. 1975).
“[T]he authority to disqualify an attorney is a function of
the court’s inherent supervisory power . . . .”
687 F. Supp. 2d at 388.
When deciding motions to disqualify,
courts look to state disciplinary rules, including, in this forum,
the New York Rules of Professional Conduct, Amusement Industry,
Inc. v. Stern, 657 F. Supp. 2d 458, 460 (S.D.N.Y. 2009), but such
rules merely provide guidance and need not be rigidly applied,
Hempstead Video, 409 F.3d at 132; Mori v. Saito, 785 F. Supp. 2d
427, 432 (S.D.N.Y. 2011).
Furthermore, the “[m]ere appearance of
impropriety will not alone serve as a sufficient basis for granting
a disqualification motion.
Rather, the motion will be granted
only if the facts present a real risk that the trial will be
Reyes v. Golden Krust Caribbean Bakery, Inc., No. 15
(alteration in original) (quoting Revise Clothing, 687 F. Supp. 2d
Where, as here, an attorney is engaged in the successive
representation of adverse parties, she may be disqualified when:
(1) the moving party is a former client of the adverse
(2) there is a substantial relationship between the
subject matter of the counsel’s prior representation of
the moving party and the issues in the present lawsuit;
(3) the attorney whose disqualification is sought had
access to, or was likely to have had access to, relevant
privileged information in the course of [her] prior
representation of the client.
Revise Clothing, 687 F. Supp. 2d at 389 (quoting Hempstead Video,
409 F.3d at 133).
This standard hues closely to Rule 1.9(a) of
the New York Rules of Professional Conduct, which provides that,
absent informed consent, “[a] lawyer who has formerly represented
a client in a matter shall not thereafter represent another person
in the same or a substantially related matter in which that
person’s interests are materially adverse to the interests of the
ordinarily imputed to [her] firm based on the presumption that
Video, 409 F.3d at 133; see also New York Rules of Professional
Conduct § 1.10(a); American International Group, Inc. v. Bank of
America Corp., 827 F. Supp. 2d 341, 345 (S.D.N.Y. 2011).
There is no dispute that the Lamonsoff Firm represented CO
Grant in a personal injury lawsuit arising out of his car accident
(Memorandum of Law in Support of Defendants’ Motion for
Memorandum of Law in Support of His Opposition to the Defendants’
Motion to Disqualify Counsel (“Pl. Memo.”) at 7).
plaintiff urges the Court to consider the fact that Ms. Massimi
was not associated with the Lamonsoff Firm during its prior
representation of CO Grant (Pl. Memo. at 7), this is irrelevant,
as the conflict is imputed to the entire firm.
The first prong
of the successive representation standard is therefore satisfied.
With respect to the second prong, a substantial relationship
between the subject matter of counsel’s prior representation and
the present lawsuit exists “if the facts giving rise to an issue
which is material in both the former and the present litigations
are as a practical matter the same.”
CQS ABS Master Fund Ltd. v.
MBIA Inc., No. 12 Civ. 6840, 2013 WL 3270322, at *12 (S.D.N.Y.
June 24, 2013) (quoting United States Football League v. National
Football League, 605 F. Supp. 1448, 1459 (S.D.N.Y. 1985)).
standard is a stringent one.
established “only upon a showing that the relationship between
issues in the prior and present cases is ‘patently clear.’
more specifically, disqualification has been granted or approved
recently only when the issues involved have been ‘identical’ or
‘essentially the same.’”
Revise Clothing, 687 F. Supp. 2d at 392
(quoting Government of India v. Cook Industries, Inc., 569 F.2d
737, 739-40 (2d Cir. 1978)); accord Obeid ex rel. Gemini Real
Estate Advisors v. La Mack, No. 14 Civ. 6498, 2015 WL 7180735, at
*4 (S.D.N.Y. Nov. 9, 2015).
This inquiry “does not turn on whether
the legal claims or underlying theories are similar, but rather
Olajide v. Palisades Collection, LLC, No. 15
Civ. 7673, 2016 WL 1448859, at *3 (S.D.N.Y. April 12, 2016)
(emphasis omitted) (quoting Giambrone v. Meritplan Insurance Co.,
Clothing, 687 F. Supp. 2d at 392 (“It is the congruence of factual
matters, rather than areas of law, that establishes a substantial
purposes.” (emphasis omitted) (quoting
United States Football
League, 605 F. Supp. at 1460 n.26)).
Here, the plaintiff argues that there is no substantial
relationship between the prior action and this lawsuit because
“the central issue in [the prior action] was  whether any driver
of any vehicle adverse to [CO] Grant’s was negligent,” which is
intentionally violated  Malcolm Anderson’s civil rights.”
Memo. at 8-9).
The central legal issues in the two lawsuits,
relationship inquiry turns on the nexus between the factual issues,
not the legal issues, in the successive representations.
deposition that she sought information about the 2010 car accident
to support her theory that the injuries CO Grant claims to have
sustained in the altercation with Mr. Anderson actually resulted
from the car accident.
(Grant Dep. at 65, 69-70, 74).
the plaintiff seeks to develop evidence about the car accident to
refute CO Grant’s contention that Mr. Anderson assaulted the
assaulted him without justification.
Thus, the plaintiff has put
the cause, nature, and severity of CO Grant’s injuries from the
car accident at issue in this litigation.
Those same factual
issues were presumably at the heart of determinations about the
defendants’ liability and CO Grant’s damages in the prior action.
factual issues in this lawsuit and the personal injury action.
With respect to the third prong, once it is established that
there is a substantial relationship between the prior and current
lawsuits, there is a rebuttable presumption that counsel had access
to confidential information during the first litigation that would
be relevant in the second.
Olajide, 2016 WL 1448859, at *3; Revise
Clothing, 687 F. Supp. 2d at 392-93; Leslie Dick Worldwide, Ltd.
v. Soros, No. 08 Civ. 7900, 2009 WL 2190207, at *12 (S.D.N.Y. July
The presumption exists because requiring proof of
access to privileged information would “put the former client to
the Hobson’s choice of either having to disclose his privileged
information in order to disqualify his former attorney or having
to refrain from the disqualification motion altogether.”
Clothing, 687 F. Supp. 2d at 395 (quoting Government of India, 569
F.2d at 740).
The presumption may be rebutted by a showing that
the firm’s involvement in the first litigation was so minimal that
it was not likely to have access to the client’s confidential
information or by the imposition of a screen at the outset of the
Hempstead Video, 409 F.3d at 138;
Worldwide, 2009 WL 2190207, at *13-14.
Here, the plaintiff has done nothing to rebut the presumption
of counsel’s access to confidential information from the personal
He makes no showing that the Lamonsoff Firm’s
representation of CO Grant in the personal injury action was
somehow limited in scope, and there is no indication that the
Lamonsoff Firm established a screen to wall off Ms. Massimi from
While Ms. Massimi contends that she is “not aware of
any confidential information whatsoever regarding [CO] Grant’s
disqualification by simply professing not to remember receiving
any privileged material,” Leslie Dick Worldwide, 2009 WL 2190207,
established a conflict of interest that warrants disqualification
of the Lamonsoff Firm from this case.
Finally, the plaintiff argues that the defendants waived the
conflict of interest by failing to file their motion to disqualify
promptly after receiving notice of the potential conflict and
through Mr. Arko’s June 30 email stating that he would not seek
disqualification “at this time.”
(Pl. Memo. at 10-13).
well settled in this Circuit that “[a] motion to disqualify . . .
should be made within a reasonable time of discovering a possible
conflict of interest, or a waiver will be presumed.”
Lavergne, No. 86 Civ. 6584, 1989 WL 31531, at *2 (S.D.N.Y. March
29, 1989); see also Catamount Radiology, P.C. v. Bailey, No. 14 CV
213, 2015 WL 4162730, at *3 n.6 (D. Vt. July 8, 2015) (“Courts
have found a party waived its right to seek disqualification of
opposing counsel when . . . there was evidence the movant postponed
filing the motion for several months until the eve of trial.”);
TufAmerica, Inc. v. Codigo Music LLC, No. 11 Civ. 1434, 2013 WL
1903867, at *6 (S.D.N.Y. May 7, 2013) (“[A]ttorneys are expected
attention promptly for adjudication.” (quoting George v. City of
Buffalo, 789 F. Supp. 2d 417, 431 (W.D.N.Y. 2011))).
also held that a party waives its right to seek disqualification
when it expressly agrees not to file a motion to disqualify.
Central Milk Producers Cooperative v. Sentry Food Stores, Inc.,
573 F.2d 988, 991-92 (8th Cir. 1978); Catamount Radiology, 2015 WL
4162730, at *3 n.6.
representation of CO Grant on June 14, 2017, when CO Grant told
him about it.
(Arko Decl., ¶¶ 4-5).
At that time, however, there
is no indication that Mr. Arko had reason to believe that the
issues involved in the personal injury action were connected to
the issues in this litigation.
Rather, the record indicates that
Mr. Arko first became aware of the connection between the two
lawsuits on July 20, 2017, when Ms. Massimi asked CO Grant numerous
questions about the accident at his deposition and revealed her
theory that the injuries CO Grant alleges to have suffered in the
altercation with Mr. Anderson were in fact caused by the car
(Arko Decl., ¶ 13).
Thus, the timeliness of this
motion should be measured from July 20, 2017.
Using an earlier
benchmark would encourage lawyers to file speculative motions to
disqualify when they lack any indication that a genuine conflict
exists, causing the very delay and added expense that the stringent
standard for disqualification is designed to avoid.
disqualification of plaintiff’s counsel on August 17, 2017, within
a month of learning of the conflict.
Courts in this District have
held that a delay as short as two months can waive a party’s right
to bring a motion to disqualify where the party has not previously
Kinner, No. 15 Civ. 1761, 2015 WL 4111325, at *6 (S.D.N.Y. June
Here, however, Mr. Arko expressed concerns about the
Lamonsoff Firm’s involvement in the prior action during a break in
Ms. Massimi’s questioning of CO Grant about the car accident, and
nothing about the timing of this motion is suspicious.
motion to disqualify was therefore brought within a reasonable
time after learning of the conflict.
Furthermore, Mr. Arko’s June 30 email did not waive the
defendants’ right to bring this motion.
The email states, “After
disqualify at this time.”
(Arko 6/30/17 Email (emphasis added)).
disqualify for the remainder of the litigation.
appears to contemplate the possibility that facts might arise in
the future that warrant disqualification, which is exactly what
Therefore, the defendants did not waive the right to
seek disqualification of the Lamonsoff Firm from this case.
For the reasons set forth above, the defendants’ motion to
disqualify the Lamonsoff Firm is granted.
This action is stayed
for thirty days to give Mr. Anderson time to retain new counsel.
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