Preview
FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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ETZER FIOTE and KESHA TINSLEY,
Index No.: 518044/2023
Plaintiffs,
AFFIRMATION IN
SUPPORT
-against-
Motion Sequence No. 1
SOUTHERN GLAZER'S WINE AND SPIRITS OF NEW
YORK, LLC, EMKAY INC. TRUST and JOHN DOE,
a driver not yet identified,
Defendants.
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JONATHAN HACK, an attorney admitted to practice in the State of New York, affirms
the following under the penalties of perjury.
1. I am a partner with the law firm of MANNING & KASS, ELLROD, RAMIREZ,
TRESTER LLP, the attorneys of record for Defendants SOUTHERN GLAZER’S WINE AND
SPIRITS OF NEW YORK, LLC and EMKAY INC. TRUST ("Defendants"), and as such am
thoroughly conversant with the facts and circumstances herein based upon the contents of the file
maintained by this office.
2. I make this affirmation in support of Defendants’ motion seeking an Order
disqualifying the law firm LIAKAS LAW, P.C. from simultaneously representing both Plaintiffs
in this action due to a conflict of interest, and granting such other and further relief as the Court
deems proper.
3. Plaintiffs' counsel is attempting to represent both Plaintiff driver ETZER FIOTE
and Plaintiff passenger KESHA TINSLEY in the current matter. However, there is a clear and
well-established conflict of interest between these Plaintiffs, as Plaintiff passenger KESHA
TINSLEY has a claim against Plaintiff driver ETZER FIOTE. Even if, arguendo, Plaintiffs'
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counsel obtained a conflict waiver, the dual representation would still be improper, as an objective,
disinterested attorney would not counsel Plaintiff passenger KESHA TINSLEY to abandon her
chance at recovery against Plaintiff driver ETZER FIOTE.
FACTUAL & PROCEDURAL HISTORY
4. This action was commenced by the filing of a Summons and Verified Complaint
on or about June 21, 2023, a copy of which is annexed hereto as Exhibit A.
5. This action concerns a motor vehicle accident that occurred on or about January 6,
2022 between a motor vehicle operated by Plaintiff ETZER FIOTE, in which Plaintiff KESHA
TINSLEY was a passenger, and a motor vehicle owned by Defendant SOUTHERN GLAZER'S
WINE AND SPIRITS OF NEW YORK, LLC, which was being operated by Defendant JOHN
DOE, a driver not yet identified. Exhibit A at ¶¶ 52, 55, 56, 57.
6. Issue was joined via the filing of a Verified Answer on behalf of Defendant
SOUTHERN GLAZER'S WINE AND SPIRITS OF NEW YORK, LLC on or about September 1,
2023, a copy of which is annexed hereto as Exhibit B, as well as the filing of Defendants’
Amended Verified Answer on or about September 21, 2023, a copy of which is annexed hereto as
Exhibit C.
7. In the Verified Answer and the Amended Verified Answer, Defendants asserted a
counter-claim against Plaintiff ETZER FIOTE seeking indemnification and/or contribution for any
judgment Plaintiff KESHA TINSLEY may receive against Defendants in the matter as it was
Plaintiff ETZER FIOTE’s negligence, reckless, and/or carelessness that caused the motor vehicle
accident at issue. Exhibit B at ¶ 91; Exhibit C at ¶ 89.
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ARGUMENT
I. PLAINTIFFS' COUNSEL CANNOT SIMULTANEOUSLY REPRESENT BOTH
PLAINTIFF DRIVER AND PLAINTIFF PASSENGER IN RELATION TO SAME
MOTOR VEHICLE ACCIDENT AS THERE IS A CONFLICT OF INTEREST AS
A MATTER OF LAW
8. Plaintiffs' counsel is improperly representing Plaintiff ETZER FIOTE, operator of
Plaintiffs' motor vehicle, and Plaintiff KESHA TINSLEY, a passenger in Plaintiffs' motor vehicle,
simultaneously with respect to their personal injury lawsuit concerning the motor vehicle accident
that occurred on or about January 6, 2022. "Representation by one attorney of both the passenger
and driver in suit involving a motor vehicle accident violates the Code of Professional
Responsibility Disciplinary Rule 105 (a) and in fact, creates a conflict of interest as a matter of
law." Matter of Bacot v. Winston, 873 N.Y.S.2d 509, 509 (Bronx Cnty. Sup. Ct. 2008); see also
Ferrara v. Jordache Enters. Inc., 819 N.Y.S.2d 421, 422 (Kings Cnty. Sup. Ct. 2006) ("The dual
representation by one firm of a driver and passenger in an automobile involved in a collision
constitutes a conflict of interest in violation of the disciplinary rules." (citing Quinn v. Walsh, 18
A.D.3d 638 (2d Dep't 2005))).
9. As set forth by the Court of Appeals in Greene v. Greene, 47 N.Y.2d 447, 451-52
(N.Y. 1979), representation of parties with a conflict of interest will rarely be sanctioned, even
when the conflict has been disclosed to the parties:
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.
10. The Ferrara court explained the inherent conflict of interest that arises when an
attorney attempts to represent both driver and passenger in a motor vehicle accident:
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The reasons for [the conflict] are clear. It should be anticipated in driver-passenger
representation that counterclaims against the plaintiff driver would be made pitting
the driver against the passenger... Moreover, where the driver is not joined as a
defendant the plaintiff passenger may well lose a valuable opportunity for recovery
if in fact the other driver is exculpated.
Ferrara, 819 N.Y.S.2d at 423. By seeking to represent both Plaintiff driver ETZER FIOTE and
Plaintiff passenger KESHA TINSLEY, Plaintiffs’ counsel prejudices Plaintiff passenger KESHA
TINSLEY, depriving her of the chance of recovery if the jury finds that Plaintiff driver ETZER
FIOTE, and not Defendants, is liable for the loss at issue.
11. Even if the Plaintiffs have been apprised of and/or waived this conflict, the dual
representation is still improper. See, e.g., Tavarez v. Hill, 870 N.Y.S.2d 774, 777 (Bronx Cnty.
Sup. Ct. 2009) ("Reliance solely upon client waiver and consent as described in DR 5-105 (c) as
justification for representation of a passenger and driver involved in a motor vehicle accident is
insufficient and is, in any event, always hazardous."). Instead, there is an objective test: if a
disinterested attorney would advise the client to withhold consent to representation given the
conflict of interest, disqualification is necessary. See Shaikh v. Waiters, 710 N.Y.S.2d 873, 876
(Nassau Cnty. Sup. Ct. 2000) ("The objective test prong of the consent requirement is that of what
a disinterested lawyer would believe. The phrase has been interpreted to mean that a lawyer is not
permitted to seek client consent to a conflict if a disinterested lawyer would advise the client to
refuse consent and that a client consent that is given is not valid if the objective test of a
disinterested lawyer is not met.").
12. Courts have consistently found that the continued joint representation of a driver
and passenger in a motor vehicle accident does not meet the objective disinterested lawyer test,
given that the plaintiff passenger is being deprived of a potential source of recovery to plaintiff
driver's sole benefit. See, e.g., Quinn, 18 A.D.3d at 638; Pessoni v. Rabkin, 220 A.D.2d 732 (2d
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Dep't 1995); Tavarez, 870 N.Y.S.2d at 777; Bacot, 873 N.Y.S.2d at 509; Shaikh , 710 N.Y.S.2d at
876.
13. Given this conflict of interests, Plaintiffs' counsel should be disqualified from the
continued representation of either party. "When a conflict exists, counsel is thereafter disqualified
from representing anyone in the action." Tavarez, 870 N.Y.S.2d at 778 (citing Alcantara v.
Mendez, 303 A.D.2d 638 (2d Dep't 2003)).
14. Failure to address this improper simultaneous representation now "could result in a
waste of limited judicial resources since a mistrial would be required if a conflict is 'discovered' at
trial, or worse, after an appeal is taken." Tavarez, 870 N.Y.S.2d at 778.
15. Based on the forgoing, the law firm Liakas Law, P.C.’s simultaneous representation
of both Plaintiff driver ETZER FIOTE and Plaintiff passenger KESHA TINSLEY presents an
insurmountable conflict of interest which cannot be overcome even with a conflict waiver, given
that an objective, disinterested attorney would not counsel Plaintiff passenger KESHA TINSLEY
to abandon her chance at recovery against Plaintiff driver.
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WHEREFORE it is respectfully requested that the Court enter an Order disqualifying
Liakas Law, P.C. from simultaneously representing both Plaintiffs in this action due to a conflict
of interest, and granting such other and further relief as the Court deems proper.
DATED: New York, New York MANNING & KASS
November 16, 2023 ELLROD, RAMIREZ, TRESTER LLP
By: _____________________________
Jonathan Hack, Esq.
100 Wall Street, Suite 700
New York, New York 10005
(212) 858-7769
Attorneys for Defendants
SOUTHERN GLAZER’S WINE AND
SPIRITS OF NEW YORK, LLC and
EMKAY INC. TRUST
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WORD COUNT CERTIFICATION
Pursuant to Section 202-8.b of the Uniform Civil Rules for the Supreme Court and the
County Court, I certify that the accompanying Affirmation in Support of Motion, which was
prepared using Times New Roman 12-point typeface, contains 1,345 words, excluding the caption,
table of contents, table of authorities, and signature block, and thus complies with the word count
limit of Section 202-8.b(a) of the Uniform Civil Rules for the Supreme Court and the County
Court. This certificate was prepared in reliance on the word-count function of the word-processing
system (Microsoft Word) used to prepare the document.
I declare under penalty of perjury that the foregoing is true and correct.
DATED: New York, New York MANNING & KASS
November 16, 2023 ELLROD, RAMIREZ, TRESTER LLP
By: _____________________________
Jonathan Hack, Esq.
100 Wall Street, Suite 700
New York, New York 10005
(212) 858-7769
Attorneys for Defendants
SOUTHERN GLAZER’S WINE AND
SPIRITS OF NEW YORK, LLC and
EMKAY INC. TRUST
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Preview
FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ---------------------------------------------------------------------x ETZER FIOTE and KESHA TINSLEY, Index No.: 518044/2023 Plaintiffs, AFFIRMATION IN SUPPORT -against- Motion Sequence No. 1 SOUTHERN GLAZER'S WINE AND SPIRITS OF NEW YORK, LLC, EMKAY INC. TRUST and JOHN DOE, a driver not yet identified, Defendants. ---------------------------------------------------------------------x JONATHAN HACK, an attorney admitted to practice in the State of New York, affirms the following under the penalties of perjury. 1. I am a partner with the law firm of MANNING & KASS, ELLROD, RAMIREZ, TRESTER LLP, the attorneys of record for Defendants SOUTHERN GLAZER’S WINE AND SPIRITS OF NEW YORK, LLC and EMKAY INC. TRUST ("Defendants"), and as such am thoroughly conversant with the facts and circumstances herein based upon the contents of the file maintained by this office. 2. I make this affirmation in support of Defendants’ motion seeking an Order disqualifying the law firm LIAKAS LAW, P.C. from simultaneously representing both Plaintiffs in this action due to a conflict of interest, and granting such other and further relief as the Court deems proper. 3. Plaintiffs' counsel is attempting to represent both Plaintiff driver ETZER FIOTE and Plaintiff passenger KESHA TINSLEY in the current matter. However, there is a clear and well-established conflict of interest between these Plaintiffs, as Plaintiff passenger KESHA TINSLEY has a claim against Plaintiff driver ETZER FIOTE. Even if, arguendo, Plaintiffs' 1 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 counsel obtained a conflict waiver, the dual representation would still be improper, as an objective, disinterested attorney would not counsel Plaintiff passenger KESHA TINSLEY to abandon her chance at recovery against Plaintiff driver ETZER FIOTE. FACTUAL & PROCEDURAL HISTORY 4. This action was commenced by the filing of a Summons and Verified Complaint on or about June 21, 2023, a copy of which is annexed hereto as Exhibit A. 5. This action concerns a motor vehicle accident that occurred on or about January 6, 2022 between a motor vehicle operated by Plaintiff ETZER FIOTE, in which Plaintiff KESHA TINSLEY was a passenger, and a motor vehicle owned by Defendant SOUTHERN GLAZER'S WINE AND SPIRITS OF NEW YORK, LLC, which was being operated by Defendant JOHN DOE, a driver not yet identified. Exhibit A at ¶¶ 52, 55, 56, 57. 6. Issue was joined via the filing of a Verified Answer on behalf of Defendant SOUTHERN GLAZER'S WINE AND SPIRITS OF NEW YORK, LLC on or about September 1, 2023, a copy of which is annexed hereto as Exhibit B, as well as the filing of Defendants’ Amended Verified Answer on or about September 21, 2023, a copy of which is annexed hereto as Exhibit C. 7. In the Verified Answer and the Amended Verified Answer, Defendants asserted a counter-claim against Plaintiff ETZER FIOTE seeking indemnification and/or contribution for any judgment Plaintiff KESHA TINSLEY may receive against Defendants in the matter as it was Plaintiff ETZER FIOTE’s negligence, reckless, and/or carelessness that caused the motor vehicle accident at issue. Exhibit B at ¶ 91; Exhibit C at ¶ 89. 2 2 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 ARGUMENT I. PLAINTIFFS' COUNSEL CANNOT SIMULTANEOUSLY REPRESENT BOTH PLAINTIFF DRIVER AND PLAINTIFF PASSENGER IN RELATION TO SAME MOTOR VEHICLE ACCIDENT AS THERE IS A CONFLICT OF INTEREST AS A MATTER OF LAW 8. Plaintiffs' counsel is improperly representing Plaintiff ETZER FIOTE, operator of Plaintiffs' motor vehicle, and Plaintiff KESHA TINSLEY, a passenger in Plaintiffs' motor vehicle, simultaneously with respect to their personal injury lawsuit concerning the motor vehicle accident that occurred on or about January 6, 2022. "Representation by one attorney of both the passenger and driver in suit involving a motor vehicle accident violates the Code of Professional Responsibility Disciplinary Rule 105 (a) and in fact, creates a conflict of interest as a matter of law." Matter of Bacot v. Winston, 873 N.Y.S.2d 509, 509 (Bronx Cnty. Sup. Ct. 2008); see also Ferrara v. Jordache Enters. Inc., 819 N.Y.S.2d 421, 422 (Kings Cnty. Sup. Ct. 2006) ("The dual representation by one firm of a driver and passenger in an automobile involved in a collision constitutes a conflict of interest in violation of the disciplinary rules." (citing Quinn v. Walsh, 18 A.D.3d 638 (2d Dep't 2005))). 9. As set forth by the Court of Appeals in Greene v. Greene, 47 N.Y.2d 447, 451-52 (N.Y. 1979), representation of parties with a conflict of interest will rarely be sanctioned, even when the conflict has been disclosed to the parties: 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. 10. The Ferrara court explained the inherent conflict of interest that arises when an attorney attempts to represent both driver and passenger in a motor vehicle accident: 3 3 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 The reasons for [the conflict] are clear. It should be anticipated in driver-passenger representation that counterclaims against the plaintiff driver would be made pitting the driver against the passenger... Moreover, where the driver is not joined as a defendant the plaintiff passenger may well lose a valuable opportunity for recovery if in fact the other driver is exculpated. Ferrara, 819 N.Y.S.2d at 423. By seeking to represent both Plaintiff driver ETZER FIOTE and Plaintiff passenger KESHA TINSLEY, Plaintiffs’ counsel prejudices Plaintiff passenger KESHA TINSLEY, depriving her of the chance of recovery if the jury finds that Plaintiff driver ETZER FIOTE, and not Defendants, is liable for the loss at issue. 11. Even if the Plaintiffs have been apprised of and/or waived this conflict, the dual representation is still improper. See, e.g., Tavarez v. Hill, 870 N.Y.S.2d 774, 777 (Bronx Cnty. Sup. Ct. 2009) ("Reliance solely upon client waiver and consent as described in DR 5-105 (c) as justification for representation of a passenger and driver involved in a motor vehicle accident is insufficient and is, in any event, always hazardous."). Instead, there is an objective test: if a disinterested attorney would advise the client to withhold consent to representation given the conflict of interest, disqualification is necessary. See Shaikh v. Waiters, 710 N.Y.S.2d 873, 876 (Nassau Cnty. Sup. Ct. 2000) ("The objective test prong of the consent requirement is that of what a disinterested lawyer would believe. The phrase has been interpreted to mean that a lawyer is not permitted to seek client consent to a conflict if a disinterested lawyer would advise the client to refuse consent and that a client consent that is given is not valid if the objective test of a disinterested lawyer is not met."). 12. Courts have consistently found that the continued joint representation of a driver and passenger in a motor vehicle accident does not meet the objective disinterested lawyer test, given that the plaintiff passenger is being deprived of a potential source of recovery to plaintiff driver's sole benefit. See, e.g., Quinn, 18 A.D.3d at 638; Pessoni v. Rabkin, 220 A.D.2d 732 (2d 4 4 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 Dep't 1995); Tavarez, 870 N.Y.S.2d at 777; Bacot, 873 N.Y.S.2d at 509; Shaikh , 710 N.Y.S.2d at 876. 13. Given this conflict of interests, Plaintiffs' counsel should be disqualified from the continued representation of either party. "When a conflict exists, counsel is thereafter disqualified from representing anyone in the action." Tavarez, 870 N.Y.S.2d at 778 (citing Alcantara v. Mendez, 303 A.D.2d 638 (2d Dep't 2003)). 14. Failure to address this improper simultaneous representation now "could result in a waste of limited judicial resources since a mistrial would be required if a conflict is 'discovered' at trial, or worse, after an appeal is taken." Tavarez, 870 N.Y.S.2d at 778. 15. Based on the forgoing, the law firm Liakas Law, P.C.’s simultaneous representation of both Plaintiff driver ETZER FIOTE and Plaintiff passenger KESHA TINSLEY presents an insurmountable conflict of interest which cannot be overcome even with a conflict waiver, given that an objective, disinterested attorney would not counsel Plaintiff passenger KESHA TINSLEY to abandon her chance at recovery against Plaintiff driver. 5 5 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 WHEREFORE it is respectfully requested that the Court enter an Order disqualifying Liakas Law, P.C. from simultaneously representing both Plaintiffs in this action due to a conflict of interest, and granting such other and further relief as the Court deems proper. DATED: New York, New York MANNING & KASS November 16, 2023 ELLROD, RAMIREZ, TRESTER LLP By: _____________________________ Jonathan Hack, Esq. 100 Wall Street, Suite 700 New York, New York 10005 (212) 858-7769 Attorneys for Defendants SOUTHERN GLAZER’S WINE AND SPIRITS OF NEW YORK, LLC and EMKAY INC. TRUST 6 6 of 7 FILED: KINGS COUNTY CLERK 11/16/2023 03:19 PM INDEX NO. 518044/2023 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 11/16/2023 WORD COUNT CERTIFICATION Pursuant to Section 202-8.b of the Uniform Civil Rules for the Supreme Court and the County Court, I certify that the accompanying Affirmation in Support of Motion, which was prepared using Times New Roman 12-point typeface, contains 1,345 words, excluding the caption, table of contents, table of authorities, and signature block, and thus complies with the word count limit of Section 202-8.b(a) of the Uniform Civil Rules for the Supreme Court and the County Court. This certificate was prepared in reliance on the word-count function of the word-processing system (Microsoft Word) used to prepare the document. I declare under penalty of perjury that the foregoing is true and correct. DATED: New York, New York MANNING & KASS November 16, 2023 ELLROD, RAMIREZ, TRESTER LLP By: _____________________________ Jonathan Hack, Esq. 100 Wall Street, Suite 700 New York, New York 10005 (212) 858-7769 Attorneys for Defendants SOUTHERN GLAZER’S WINE AND SPIRITS OF NEW YORK, LLC and EMKAY INC. TRUST 7 7 of 7