The following papers numbered 1 to 14 were read on this motion by the defendants for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint as against defendant USA EDHI INTERNATIONAL FOUNDATION and for an order disqualifying Stephen I. Feder, Esq. from representing the plaintiff in this action:

Papers Numbered

Notice of Motion-Affidavits-Exhibits...................1 - 5

Affirmation in Opposition..............................6 - 11

Reply Affirmation.....................................12 - 14

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In this action, the plaintiff seeks to recover a money judgment with regard to a series of alleged promissory notes dated from July 30, 2009 through December 16, 2011. The plaintiff asserts that the notes were executed by both defendants in return for monies lent and constitute unconditional agreements to pay the total sum of $348,650 plus interest.

The plaintiff commenced the action against Qutub Edhi ("Edhi") individually, and the USA Edhi International Foundation ("the Foundation") by moving for summary judgment in lieu of complaint. Plaintiff alleged that the defendants are in default [*2]as they have failed to make any payments to him pursuant to the promissory notes in question. Plaintiff contended that summary judgment was warranted as that plaintiff submitted proof of the existence of the notes and the defendants' default in payment.

By decision dated December 3, 2012, the motion was denied by this court. This Court found that the plaintiff failed to make a prima facie case as to a default on the promissory notes as there were questions of fact as to whether full payment of all or any of the loans which are the subject of this proceeding were paid and questions of fact as to whether the defendant had any authority to bind the Foundation and whether the plaintiff's counsel, Stephen I. Feder, Esq. has a conflict of interest. Certain promissory notes in question made reference to the Foundation being liable if Edhi defaulted in payment of the notes. The motion was then deemed the plaintiff's complaint and the defendant filed a verified answer with counterclaims dated January 24, 2013. The plaintiff then served a verified answer to counterclaims with affirmative defenses dated March 11, 2013.

In the instant motion for summary judgment defendants move for an order dismissing the action as against the Foundation only and for an order disqualifying plaintiff's counsel from further representation of the plaintiff in this matter. In support of the motion the defendants submit an affirmation from Qutub Edhi dated July 17, 2013 stating that the defendant Foundation is a Pakistani charitable organization managed by on Mohammad Choudhary. Edhi states that all of the financial transactions in question between himself and the plaintiff Qasemi were strictly personal in nature and had nothing to do with the Foundation. Secondly, he states that he had no power to bind the Foundation. Edhi states that because he had no power to bind the Foundation to any financial responsibility and because he did not sign the notes as a representative for the Foundation, the plaintiff's complaint as against the Foundation should be dismissed.

Mr. Choudhary, the manager of the Foundation states that the action should be dismissed against the Foundation because Edhi has no authority to bind the Foundation financially in any way. He states that the language in the notes purporting to guarantee payment in case of a default was done without the knowledge or consent of the Foundation and as the Foundation was not a party to the promissory notes cannot be held liable for the alleged default.

With respect to the branch of the motion for an order disqualifying Mr. Feder from representing the plaintiff, defendant alleges that Mr. Feder has a conflict of interest as he [*3]prepared some of the subject loan documents for the benefit of the plaintiff and for himself. In addition, Edhi states that Feder represented him as his lawyer when Edhi was sued by Southern Wine and Spirts Inc. Edhi states that he also retained Mr. Feder in an action entitled Blagio Restaurant v EE Properties filed in Queens County in 2008 to monitor and report the status of the Queens County litigation. Edhi contends that as Mr. Feder has represented him in separate and ancillary matters as well as in his representation in the drafting of loan documents which are the subject of this lawsuit, Mr. Feder has a conflict of interest as he has gained privileged information from his representation of the defendant and as he may be called as a necessary witness. Edhi states that Mr. Feder was "intimately involved in matters relating to this matter throughout the course of the parties dealings and is a necessary witness in the case."

Defendant's counsel William Betz, Esq. contends that because the plaintiff's attorney represented Edhi in numerous prior transactions, Mr. Feder should be disqualified from any further involvement in this case.

In opposition, plaintiff Ahmed Qasemi submits an affidavit dated September 3, 2013 stating that there is a question of fact as to whether Edhi does in fact have authority to bind the corporation as he has purported to do in certain notes that are the subject of this case. In that respect the plaintiff submits documentation showing that Edhi is a trustee of the Foundation. Further, plaintiff alleges that discovery has not yet taken place and the plaintiff has not been able to obtain documents with respect to Edhi's authority vis a vis the Foundation. Plaintiff contends that Edhi promised that either he or his Foundation would be responsible for payment of the notes.

With respect to the motion to disqualify plaintiff's attorney, Mr. Feder submits an affidavit stating that he did represent the plaintiff "in a couple of unrelated matters." He states however, "that at no time did I ever represent Edhi previously on any matter substantially related to the action herein." He also stated that he did draft one of the promissory notes which is the subject of this case but that it was in the context of the purchase of Edhi's property by the plaintiff at a short sale. He states that he also represented Edhi concerning a claim against him on a personal guaranty from a supplier for his defunct club. He states that he has no factual knowledge that could possibly prejudice Edhi in this action and that there is no conflict of interest.

Upon review of the defendants' motion for summary judgment [*4]dismissing the complaint as against the Foundation and disqualifying the plaintiff's counsel, plaintiff's affirmation in opposition and defendants' reply thereto, this court finds as follows:

As stated by this court in its prior decision there is a question of fact as to whether the defendant had any authority to bind the Foundation. Here, the plaintiff has submitted documents indicating that Edhi is a trustee of the corporation and questions as to whether the defendant signed the notes as a representative of the Foundation (see Sound Shore Med. Ctr. of Westchester v Maloney, 96 AD3d 823 [2d Dept. 2012]; Agai v Diontech Consulting, Inc., 64 AD3d 622 [2d Dept. 2009]; Ippolito v Family Medicine of Tarrytown & Ossining, LLP, 46 AD3d 752 [2d Dept. 2007]; Khoury v Khoury, 280 AD2d 453 [2d Dept. 2001]).

Further, the defendant's motion is incomplete because the defendant fails to submit copies of the promissory notes in question (see CPLR 3212([b]). In addition, the motion for summary judgment is premature as the defendants have not yet responded to the plaintiff's interrogatories related to the role of Edhi with the Foundation.

Therefore, that branch of the defendants motion for an order granting summary judgment dismissing te plaintiff's complaint against the Foundation is denied.

With respect to the branch of the motion seeking to disqualify plaintiff's counsel, the Courts have stated, "a party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Matter of Dream Weaver Realty, Inc. [Poritzky—DeName], 70 AD3d 941 [2d Dept. 2010], quoting Aryeh v Aryeh, 14 AD3d 634 [2d Dept. 2005]; also see Goldman v Goldman, 66 AD3d 641 [2d dept. 2009]). In any case, "a party seeking disqualification of its adversary's lawyer must prove: (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 former client are materially adverse" (Gabel v Gabel, 101 AD3d 676 [2d Dept. 2012] quoting Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123 [1996]; also see Matter of Town of Oyster Bay v 55 Motor Ave. Co., LLC, 109 AD3d 549 [2d Dept. 2013]; Scopin v Goolsby, 88 AD3d 782 [2d Dept. 2011]; Rules of Professional Conduct, 22 NYCRR 1200.0, rule 1.9[a][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 [*5]materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing]). In that respect it has been held that "he Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the latter representation within the prohibition of Canon 6" (Cino v Creighton, 2013 NY Slip Op 30968(U)[Sup Ct. NY Co. 2013]).

Here, as the plaintiff's attorney concedes that he has represented the plaintiff is past transactions and was involved in drafting one of the notes that is the subject of this action for which plaintiff was not represented by independent counsel, there is a question of fact as to whether Mr. Feder's prior representation involved matters substantially related to the matter at hand.

Accordingly, that branch of the defendants' motion for an order disqualifying the plaintiff's counsel shall be determined following a hearing before this Court at which the defendant shall have the burden of proof of showing that the prior representation was substantially related to the current representation. Said hearing shall be held in Room 304 of the Queens County Supreme Court, located at 25-10 Court Square, Long Island City, New York 11101, at 10:00 a.m on January 7, 2014.

Notify counsel.

Dated: November 13, 2013

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.