This case concerns a family feud. Plaintiff and defendants are fighting over ownership and access to an inherited seasonal cabin situated on 115 acres of land jointly co-owned with several other non-defendant parties. Currently at issue is Plaintiff's motion to disqualify defense counsel, and relatedly, an oral motion asking the Justice presiding to recuse.

In order to comprehend the matter, some historical context is necessary. Plaintiff Gail Franklin and one of the five co-defendants, Sharon Hoffstetter, are sisters. In 1974 their father Claude Scott joined with 7 friends to form a social club and purchase a 115-acre tract of land a one-hour drive south of Buffalo in Ellicottville, Cattaraugus County, NY. The club allowed the individual members each to construct a cabin on the property. Claude Scott did so and died not long thereafter. By both the Club By-Laws and Claude Scott's Will, his wife inherited the cabin. Thereafter Mrs. Scott died, and here the dispute arises.

Initially Plaintiff alleged that the By-Laws required that the ownership of club rights to the property and the cabin, upon the wife's death, required distribution to the children equally. [*2]Apparently, the Will left by Claude Scott's widow also set forth equal distribution amongst the children. Defendants alleged that the By-Laws required, upon the widow's passing, that distribution goes to the eldest child, with approval by the Club.

Plaintiff alleges she had been using the cabin for 40 years, and furthermore, frequently attended club meetings, acting as Secretary, although there was no formal vote or appointment. Up until about 2020, Plaintiff paid nominal annual dues to the club. In about 2021, co-defendant Sharon Hofstetter transferred her share to her son Michael Hofstetter.

In a contentious battle between family members beginning about 2022, Plaintiff was locked out of the cabin; had her possessions removed; and her annual dues returned to her. Defendants alleged that Plaintiff permitted her daughter Lydia Franklin and Lydia's fiancé to utilize the acreage and cabin and permit their wild dog to roam free. They allege one co-defendant was bit by the dog, and that the fiancé set traps for animals and hunted on the property, physically endangering himself and others during hunting season.

Plaintiff sued the Club; it's president Michael Griffen; her sister Sharon Hoffstetter; her sister's son Michael Hoffstetter; and her sister's daughter Nicole Hoffstetter. In a Court Order upon the Order to Show Cause and Cross Motion entered September 1, 2022, the prior Justice presiding, Siragusa, J. provided for equal alternating visitation periods, amongst other things.

Now Plaintiff moves to disqualify Defense counsel for conflicts of interest. Plaintiff alleges:

1) Breach of fiduciary duty between the Club and its president Michael Griffin;

2) Adverse ownership claims between the Club and the 4 family members concerning the acreage and the cabin (one of several built upon the acreage);

3) Conflict between the club and the 4 family members concerning who is or is not a member;

4) Conflict between whether the club is a "social" club or a "hunting" club;

5) Statutory conflict between the club and 4 family members concerning whether the club still exists by virtue of the original members' deaths and By-Laws of the club or whether the club must be dissolved pursuant to the New York Not-For-Profit Corporation Law.

Defendants counter that they have a statutory if not a constitutional right to retain counsel of their choice, and that Plaintiff has not met the high bar for disqualification — a clear evidentiary showing. Plaintiff's allegations to substantiate the conflicts requiring disqualification, contend defendants, are speculative and hypothetical.

New York Courts have found that a party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted (Empire Medical Services v. Sharma, 189 AD3d 1176 [2d Dept. 2020] quoting Homar v. American Home Mortgage (119 AD3d 901 [2d Dept. 2014]). New York Courts recognize only limited circumstances in which they are willing to infringe upon a litigant's choice of counsel by disqualification (id.). According to the Second Department, there must be a "clear evidentiary showing" to justify the disqualification of a party's counsel (See [*3]Matter of 148 S. Emerson Partners LLC v. 148 S. Emerson Partners LLC, 157 AD3d 889 [2d Dept. 2018]).

In the specific matter at bar, Plaintiff's affidavit is comprised of speculation and hypotheticals. There is no evidentiary showing whatsoever that there is a conflict or dispute between the club (possibly 8 members, but comprehensive membership has not yet been litigated or determined) and its president; there is no dispute concerning ownership as the defendants acknowledge that the Club, and not the individual members, owns the property; whether the club is a "social" club or a "hunting" club is irrelevant to the issue of legal representation; and finally, there is no evidentiary showing concerning whether the "club" still exists, and Plaintiff's request that the Attorney General intervene to ascertain the club's legal or existential status is ultra vires, i.e. such a request is beyond the authority of this Court.

Defendants contend that the New York Rules of Professional Conduct (1.13[d] and 1.7) prohibit representation when the representation will involve the lawyer in representing differing interests.^[FN1] But notwithstanding such a conflict, a lawyer may still represent if, among other things, each affected client gives informed consent, confirmed in writing.

In the matter at bar, it is purely speculative and hypothetical whether any defendants have differing interests. The only allegations concerning "interests" have been made by Plaintiff. Not a single one of the 5 co-defendants has alleged differing interests, and neither has Plaintiff proffered any "clear evidentiary showing."

Moreover, although written informed consents by the co-defendants were not provided as part of the responding Motion papers, this Court permits such a response because the Rules of Professional Conduct do not set forth any deadline by which to provide such consent. The Consents are provided to Court and Counsel in Defendant's second attorney affirmation (NYCEF Doc. 71). As a result, because the co-defendants have all waived any arguable conflict of interest, plaintiff's arguments —whether even valid or not — are now moot. (Interestingly, it would appear that by the very nature of the developing awareness during litigation of any such arguable conflict, if any earlier hypothetical deadline might be imposed, such an earlier deadline would undermine or subvert any disqualification. Thus courts really would err on the side of a more "knowing and intelligent" waiver by permitting filing such waivers later in the litigation, rather than earlier).

As a related aspect of the Court's permitting the filing of the Defendant's Consents, Plaintiff orally moves for recusal of the Justice presiding (now denominated by the Court as Motion Sequence #6)( March 13, 2025 Transcript at page 6). Plaintiff relies on both parties' sur-replies for the factual scenario. But the parties have each submitted briefs concerning Court recusal (Nycef Docs # 77,78).

Plaintiff makes three points in support of the motion: (a) that the justice presiding [*4]independently investigated facts of the case; (b) that the justice presiding committed an abuse of discretion by permitting defense counsel to submit additional affidavits of consent; and (c) that the justice presiding abused his discretion as a matter of law.

For the following reasons, this Court declines to recuse.

Judiciary law section 14 and 22 NYCRR 100.3 (holds that " a judge shall disqualify himself in a proceeding in which the judge's impartiality may be reasonably questioned." However, the fact that a judge makes a ruling that is not to a party's liking does not demonstrate either bias or misconduct (Gonzalez v. L'Oreal USA Inc., 92 AD2d 1158 [3d Dept. 2012]).

Furthermore, Courts have broad discretion to accept or reject supplemental briefings as part of their inherent authority to regulate motion practice (Pena Vazquez v. Beharry, 82 AD3d 649 [1st Dept. 2011] [The court did not abuse its discretion by granting permission to file as a sur- reply which included documentation]). In Barbuto v. Winthrop University Hospital (305 AD2d 623 [2d Dept. 2003]), the appellate division held that the lower court providently exercised its discretion to consider the supplemental affirmation which was belatedly served by plaintiff in sur-reply on the appellants' original motion. In 269 Fulton Corp. v. HAB Realty Assoc. (179 AD2d 752 [2d Dept 1992]), the appellate division held that the court did not improvidently exercise its discretion in considering plaintiff's sur-reply papers submitted after the return date of the defendant's motion. Courts have the discretion to determine whether to accept late papers, papers, sur-reply papers, or papers otherwise not in conformance with controlling law, and the authority to generally regulate motion practice (Held v. Kaufman, 238 AD2d [2d Dept. 1997]). Finally, where a Court believes that information is necessary to make a proper determination on a motion, and a party has the opportunity to oppose and or object to evidence in sur-reply papers, the Court does not improvidently exercise its discretion to consider information in a sur-reply (Proctor v. ALCOA, Inc. — Misc. 2d. — NY slip opinion 30023[U][2015]).

Applying this law to the facts at bar, it is plainly evident that the justice presiding did not independently investigate any facts in this case, but merely requested that additional papers be supplied by counsel. There is no abuse of judicial discretion in accordance with Pena-Vazquez; Barbuto; 269 Fulton; and Held, because the justice presiding merely requested that additional papers be submitted by counsel in a sur-reply. Furthermore, there has been no prejudice to plaintiff by acceptance of the consents. As in Proctor, supra, plaintiff had every opportunity to argue against the consents. In sum, the behavior exhibited by this Court is in keeping with prior case law —nothing more.

Finally, plaintiff's counsel makes the argument that defendants have submitted no admissible evidence to support the claim that the defendants consented to multiple representation. However, the burden is on the Plaintiff to provide admissible evidence to the contrary, as discussed supra, where the Court analyzed plaintiff's request for attorney disqualification. Thus, here plaintiff is engaged in burden-shifting, which is legally untenable (cf Romeo v. Ben-Soph Food Corp., 146 AD2d 688 [2d Dept. 1989], decided on distinguishable facts, namely new and supplemental submitted evidence. At bar, the defendant's Consents are not new and supplemental to their previously-argued position).

In conclusion, Plaintiff's motions are hereby DENIED.

Defendants are directed to submit a proposed order to the Court, consistent with this decision, on notice to the plaintiff and attach a copy of the transcript of oral argument.