The following papers and the attachments and exhibits thereto have been read on this motion:

Notice of Motion1

Affirmation in Opposition2

In an action to recover damages for, inter alia, breach of contract, Defendant David M. Barshay ("Barshay") moves for an order pursuant to CPLR 321(c) disqualifying the law firm of Kopelevich & Feldshevora, PC ("Kopelevich & Feldshevora") from representing third-party Defendant Nicholai Minkin, a/k/a Nicholas Minkin, a/k/a Nick Minkin ("Minkin").

Barshay now moves for an order pursuant to CPLR 321(c) disqualifying Kopelevich & Feldshevora from representing Minkin on the ground that the Firm's representation of the Medical Providers in two other actions and its representation of Minkin in this action violates Rule 1.7(a) of the Rules of Professional Conduct.

For the reasons that follow, the motion is denied.

Rule 1.7(a) of the Rules of Professional Conduct provides:

Conflict of Interest; Current Clients [*2]

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either:

(1) the representation will involve the lawyer in representing differing interests; or

(2) there is a significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

"[D]isqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized" (Matter of Madris v Oliviera, 97 AD3d 823, 824 [2d Dept 2012] [internal citations omitted]). Therefore, competing concerns arise when deciding an application to disqualify an attorney, namely, avoiding even the appearance of impropriety verses the party's right to choose his attorney, coupled with the possibility that the application may be strategically motivated (S & S Hotel Ventures Ltd Partnership v 777 S.H. Corp., 69 NY2d 437 [1987]; see also Solow v Grace & Co., 83 NY2d 303, 310 [1994]). The burden of proof is on the moving party who must make "a clear showing that disqualification is warranted" (Olmoz v Town of Fishkill, 258 AD2d 447 [2d Dept 1999]). The court must consider the evidence in the light most favorable to the non-moving party (Matter of Madris v Oliviera, 97 AD3d at 825, supra). Any doubt as to the existence of a conflict of interest must be resolved in favor of disqualification (Rose Ocko Found v Liebovitz, 155 AD2d 426, 427 [2d Dept 1999]).

The Court of Appeals held in Greene v Greene (47 NY2d 447, 451-452 [1979]) as follows:

It is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client's interests diligently and vigorously within the limits of the law . . . . For this reason, a lawyer may not undertake representation where his independent professional judgment is likely to be [*3]impaired by extraneous considerations. Thus, attorneys historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests . . . . This prohibition was designed to safeguard against not only violation of the duty of loyalty owed the client, but also against abuse of the adversary system and resulting harm to the public at large. Perhaps the clearest instance of impermissible conflict occurs when a lawyer represents two adverse parties in a legal proceeding. In such a case, the lawyer owes a duty to each client to advocate the client's interests zealously. Yet, to properly represent either one of the parties, he must forsake his obligation to the other. Because dual representation is fraught with the potential for irreconcilable conflict, it will rarely be sanctioned even after full disclosure has been made and the consent of the clients obtained. Particularly is this so when the public interest is implicated or where the conflict extends to the very subject matter of the litigation (citations omitted) (emphasis added).

It is not only potential claims but potential conflicting pecuniary interests that require disqualification (Zweibel v Guttman, 26 AD3d 429 [2d Dept 2006]; Alcantara v Mendez, 303 AD2d 337, 338 [2d Dept 2003]; Schmidt v Magnetic Head Corp., 101 AD2d 268 [2d Dept 1984]).

Here, Barshay seeks to disqualify Kopelevich & Feldshevora from representing Minkin in this action based on its representation of the Medical Providers in two other matters, specifically, Rubin,Fiorella & Freidman, LLP v Pinkusovich and Art of Healing Medicine, P.C., Index No. 155808-12 in the Supreme Court of New York County (the "New York County libel action") and Comprehensive Mental Assessment & Medical Care, P.C., All Mental Care Medicine, P.C., Points of Health Acupuncture, P.C., Horizon Psychological Services, P.C and Art of Healing Medicine, P.C. v Gusrae Kaplan Nusbaum, PLLC, Index No. 17637-12 in the Supreme Court of Kings County (the "King's County legal malpractice action"). Minkin is not a party to either of those actions.

The New York County libel action concerned Rubin, Fiorella & Friedman, LLP's (the "Rubin firm") claims against Dr. Pinkusovich and Art of Healing Medicine, P.C. for libel, per se. Dr. Pinkusovich and Art of Healing Medicine, P.C. counterclaimed in the New York County libel action alleging that the Rubin firm defamed Art of Healing Medicine, P.C. when it alleged that it was fraudulently incorporated.

By order dated April 18, 2013, the complaint and the counterclaims in the New York County libel action were dismissed on the ground, inter alia, that the challenged statements were absolutely privileged. The dismissal is currently pending on appeal, the issue of which is whether Dr. Pinkusovich's alleged defamatory letters were absolutely privileged, an issue which is irrelevant in the instant action. Thus, disqualification based on Kopelevich & Feldshevora's representation of the Medical Providers in the New York County libel action and Minkin in the instant action is not warranted.

With respect to the Kings County legal malpractice action, the Medical Providers sought [*4]to recover of Gusrae Kaplan Nusbaum for, inter alia, legal malpractice based on their representation of them in this action.^[FN1] The complaint in the Kings County legal malpractice action was dismissed by order dated July 17, 2013 (Vaughan, J.). Accordingly, on the papers presented, the court concludes that disqualification of Kopelevich & Feldshevora is not warranted given that the dismissal of the legal malpractice action has rendered academic Kopelevich & Feldshevora's dual representation of the Medical Providers in the Kings County legal malpractice action and Minkin in the instant action.

Based on the foregoing, it is hereby

Ordered that the motion of third-party Plaintiff Barshay to disqualify Kopelevich & Feldshevora, PC from representing third-party Defendant Minkin in the instant matter is denied.

This constitutes the decision and order of the court.

DATE: November 18, 2013

___________________________________

Hon. Vito M. DeStefano, J.S.C.