Preview
FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF PUTNAM
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ARTHUR B. MORAN,
Plaintiff,
AFFIRMATION IN OPPOSITION
-against-
Index No.: 500286/2023
SALEM ASSOCIATES HUNT CLUB, MICHAEL
WALTER in his Personal and Official Capacity, and
JOSEPH HENRY in his Personal and Official Capacity,
Defendants.
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LOUIS U. GASPARINI, an attorney duly admitted to practice law before the Courts of
the State of New York, hereby affirms the following under the penalties of perjury:
1. I am Partner of the law firm of SCHWAB & GASPARINI, PLLC, attorneys for the
defendants, SALEM ASSOCIATES HUNT CLUB, MICHAELWALTER in his Personal and
Official Capacity, and JOSEPH HENRY in his Personal and Official Capacity (hereinafter
“Answering Defendants”), in the above-entitled action; and, upon a review of the file maintained
by this office, I am fully familiar with the facts and circumstances heretofore had herein.
2. This affirmation is being respectfully submitted in opposition to the motion by the
plaintiff, ARTHUR B. MORAN (hereinafter “Plaintiff”), for an Order disqualifying Defendants’
Counsel from further representation in this Action and granting such other and further relief as to
the Court seems just, fitting and proper.
3. Contrary to the meritless arguments presented in his motion papers, the Plaintiff’s
motion should be denied in its entirety given his utter failure to establish the existence of a conflict
nor the appearance of impropriety by my firm’s continued representation of all defendants in this
action.
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A. Plaintiff’s motion to disqualify Defendants’ Counsel should be denied given that there
exists no conflict nor the appearance of impropriety by the continued representation
of all defendants.
4. The plaintiff’s lawyer first raised the alleged conflict of interest in a letter dated July
10, 2023, in which counsel requested that our firm withdraw from jointly representing the
Defendants in this action. A copy of Pascazi’s correspondence is annexed hereto as Exhibit “A”.
5. The arguments presented by the plaintiff’s lawyer are somewhat of a headscratcher—
but he appears to argue that because this law firm represents all the defendants jointly, and that
because it “is impossible for the public to truly know the relationships and inter-relationships
between all three [d]efendants,” there must somehow be a conflict of interest. See Plaintiff, Aff.,
¶13. In reading further into the rambling affirmation of plaintiff’s counsel, it is difficult to follow
the argument, but what can be gleaned is that because “Walters . . . [and] Henry are both officers
of the Defendant club Salem” one attorney cannot represent them. See Plaintiff, Aff., ¶22.
6. Even reading the attached supporting affidavit of the plaintiff himself, which was
obviously prepared by his lawyer, it is equally difficult to see what the apparent alleged conflict
of interest is in joint representation. Initially, the plaintiff argues that the individual named
defendants are “using the club as their piggy bank to defend themselves from their unlawful
conduct towards [him] . . . See Plaintiff, Aff., ¶10. He further explains that this allegation is
based on the claim that the Club has “paid for the defense in this action of both of the natural
person [d]efendants in this action to wit: Michael Walters . . . and Joseph Henry. . . .” See id., at
¶7.
7. While not relevant, the court should know that all three defendants have been
provided with a defense from the Club’s commercial liability insurance carrier, who has been
paying any invoice from our firm.
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8. When reading the affidavit even further, it becomes even clearer, that the ramblings
contained in the plaintiff’s lawyer’s affirmation seem to carry over into the plaintiff’s affidavit.
Specifically, the plaintiff goes on about the use of an aerial drone while hunting deer, see Plaintiff,
Aff., ¶11-12, how the Club should punish the defendants for engaging in such activity, see
Plaintiff, Aff., ¶14, and because these defendants engaged in such conduct, and the Club has not
removed them, there is some kind of a conflict of interest inn joint representation. See Plaintiff,
Aff., ¶15.
9. Reading even further, the story gets better. The allegation by plaintiff is then that the
named defendants made the unconscionable decision to “dramatically” change the Club’ character
“from a private all male brotherhood” to a “mixed gender organization”. See Plaintiff, Aff., ¶20.
In doing so, the plaintiff believes that they have “gone rogue and are running amuck.” See Plaintiff,
Aff., ¶22.
10. There are other claims about “[h]orses are not dogs, ” see Plaintiff, Aff., ¶26, which
frankly isn’t even worth describing further.
11. In any event, after the plaintiff’s lawyer corresponded with this office, we attempted
to explain thoroughly to him the frivolity of his claim. We explained to counsel how the defense
was unified, how courts have rejected such instances of an alleged conflict of interest, and provided
counsel with appropriate case law to dissuade him from wasting the Court’s time which such a
meritless endeavor. A copy of our responsive correspondence is annexed hereto as Exhibit “B”.
12. Given that we wrote to him in the Summer, and have heard nothing since that time,
we assumed that the issue would have been resolved. Sadly, the caselaw cited in his July 10, 2023
letter is identical to the caselaw cited in the Affirmation in Support of his Motion to Disqualify—
which we explained to him was simply irrelevant to this case. Notably, in our response letter we
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addressed each case cited by counsel, and not one demonstrates any type of conflict of interest in
joint representation.
13. In Halberstam v. Halberstam, 122 A.D.3d 679 (2d Dep’t 2014), a divorce action, the
attorney for the plaintiff was the parties’ brother-in-law, the plaintiff-wife’s sister’s husband. Prior
to commencement of the divorce action, the defendant-husband had confided in his brother-in-law
to discuss financial and other personal matters, under the assurance that the brother-in-law would
not represent either party in the event an action for divorce was commenced.
14. In Matter of Stasser, 129 A.D.3d 457 (1st Dep’t 2015), the Court determined that two
co-guardians of the incapacitated person in a guardianship proceeding could not be represented by
the same attorney due to materially adverse interests of the two co-guardians. One co-guardian
was the incapacitated person’s wife, and the other a close family friend. The Court held that there
was a conflict of interest arising from their mutual financial dependence on the incapacitated
person, in that the Trust was created for the support of his wife, with the residuary to pass to his
close family friend. The more assets spent during the wife’s lifetime will of necessity mean less
assets that pass to the close family friend. Thus, representation by a single firm or attorney would
create the potential for a conflict, and impermissibly place the lawyer in a position which would
give the appearance of representing conflicting interests.
15. In Roddy v Nederlander, 96 A.D.3d 509 (1st Dep’t 2012) the third-party defendant
moved to disqualify counsel for the defendants Nederlander and Gershwin. The third-party
defendant was a contractual indemnitor of defendant Gershwin only. It was held that a potential
for conflict exists resulting from the Law Firm’s joint representation of both defendants, as each
defendant had a competing interest in minimizing its proportional share of the damages. The Law
Firm had rejected the third-party’s insurer’s agreement to accept defense and indemnity of
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Gershwin, with the explanation that the third-party defendant’s insurer was also obligated to
contractually indemnify Nederlander. The Appellate Division held that denying the motion would
preclude third-party defendant, as contractual indemnitor for Gershwin, only one of the named
defendants, from exercising its right to properly defend the action in an effort to limit its exposure
to Gershwin’s proportional share of liability.
16. In Tarakoff v. NYS Education Department, 130 A.D.3d 1331 (3d Dep’t 2015), the
Petitioner was a licensed social worker who had been investigated by the Office of Professional
Discipline of the NYS Education Department after receiving a complaint from one of his client’s,
JC. He was eventually charged with negligence, incompetence, and unprofessional conduct for
actively socializing with JC’s then husband and father, and for failure to maintain accurate records.
Petitioner alleged that he did not receive a fair hearing because his chosen counsel was disqualified.
However, his chosen counsel had already been representing JC in a separate civil rights action
against her employer in federal court. To effectively represent the Petitioner, he would have had
to cross-examine JC. His simultaneous representation of her in a pending federal action potentially
gave him access to information not otherwise available for use on cross-examination, and the
attorney would be attempting to diminish her credibility whereas an opposite result would be
pursued in her federal action. This was determined to be a sufficient conflict of interest to
disqualify the attorney.
17. Here, there are no conflicts that would warrant disqualification. Our firms’
representation of all three defendants does not represent differing interests. To the contrary,
Plaintiff’s very own Complaint continuously and repeatedly lumps all three defendants into every
single allegation. A copy of the Complaint is annexed hereto as Exhibit “C”. For example, the
Complaint alleges that Defendants failed to perform the Contract (Ex. “C”, ¶31); Plaintiff has
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been, and continues to be damaged by Defendants’ Breach (Ex. “C”, ¶32); Plaintiff and
Defendants were parties to a contract (Ex. “C”, ¶38); Defendants acted deliberately and in a
manner not expressly forbidden by the Contract, to deprive the Plaintiff, prevent performance of
the Contract or withhold its benefits from the Plaintiff (Ex. “C”, ¶39); Defendants intended to
inflict harm upon Plaintiff (Ex. “C”, ¶42); Plaintiff incurred special damages by virtue of
Defendants’ conduct (Ex. “C”, ¶43); There was/is no valid excuse for Defendants’ conduct
toward Plaintiff (Ex. “C”, ¶44); Defendants’ conduct toward Plaintiff was otherwise lawful (Ex.
“C”, ¶45); Plaintiff has identified a bone fide justiciable dispute between himself and Defendants
(Ex. “C”, ¶45), concerning Defendants’ unlawful termination of Plaintiff’s membership in Salem
Associates Hunt Club (Ex. “C”, ¶47); Pursuant to CPLR 3001, 3017(b) and the common law of
this State, the court must declare the rights and respective legal relations of the parties, as regards
to Defendants’ termination of Plaintiff’s membership in Salem Associates Hunt Club, which
was/is unlawful, unenforceable, null and void (Ex. “C”, ¶48).
18. There is not one single allegation in Plaintiff’s Complaint which singles out one
defendant as against the others. Each and every count alleges that all defendants acted together to
allegedly breach the by-laws, knowingly benefit at the Plaintiff’s expense, breach the implied
covenant of good faith and fair dealing, and commit prima facie tort. Each and every count on the
Prayer for Relief seeks judgment against “Defendants.” Not one count singles out an individually
named party to this action.
19. In addition, each and every defense by the defendants is unified. The decision to
terminate Plaintiff Moran’s membership was a joint decision by the Board, of which the
individually named defendants are members of, after Moran was given the opportunity to issue an
apology to the entire membership for his gender bias comments. Moran was informed that if he
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failed to apologize his membership would be terminated. He failed to do so. As such, it was a
joint decision by the Board to terminate his membership in accordance with the terms of the By-
Laws.
20. A party's right to be represented by counsel of his or her own choosing is a valued
right which will not be superseded absent a clear showing that disqualification is warranted.
See Mediaceja v Davidov, 119 A.D.3d 911 (2d Dep’t 2014); Zutler v Drivershield Corp., 15
A.D.3d 397 (2d Dep’t 2005). The moving party bears the burden of showing that disqualification
is warranted See Aryeh v Aryeh, 14 A.D.3d 634 (2d Dep’t 2005).
21. In Robbins v. Ellman the Appellate Division First Department reversed an Order of
the Supreme Court, New York County that had disqualified that defendant law firm from appearing
on behalf of more than one defendant. See Robbins v. Ellman, 65 A.D.2d 519 (1st Dep’t 1978).
The Appellate Division held that disqualifying the law firm was in error, in light of the fact that it
was not established that the “director” and “tenant” groups had divided, adverse and conflicting
interests. See Robbins, 65 A.D.2d at 519.
22. In Olmoz v. Town of Fishkill, the Appellate Division Second Department affirmed a
denial of plaintiff’s motion to disqualify counsel for defendant. The Appellate Division held that
a plaintiff’s mere conclusory assertions that there is a conflict of interest is insufficient to warrant
a hearing as to whether there is a conflict of interest. See Olmoz v. Town of Fishkill, 258 A.D.2d
447 (2d Dep’t 1999). The Appellate Division held that the Supreme Court providently exercised
its discretion in refusing to disqualify defense counsel since the plaintiff failed to present anything
more than sheer speculation as to the existence of a conflict of interest. Id.
23. In Rowe v. DeJesus, 106 A.D.2d 284 (1st Dep’t 1984), the defendants’ firm was
representing nine defendants in the action. The Appellate Division First Department held that the
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plaintiff failed to demonstrate any substantial public interest which would preclude the defendants
from exercising their right to representation by an attorney of their choice. The Appellate Division
cited to the Court of Appeals which had held that although a party does not possess an absolute
right to selection of legal counsel, “any restriction imposed on that right will be carefully
scrutinized . . . and will not yield unless confronted with some overriding competing public
interest…” (Matter of Abrams, 62 N.Y.2d 183 [1984]). Further, the Rowe Court held that
defendants may not be deprived of their choice of counsel merely on the basis of their adversary’s
allegation that there exists the possibility of a conflict of interest among the various defendants.
24. Similarly, here, “it is in appropriate for the plaintiff to impose, over defendants’
objections and in the absence of any overriding public interest, a substitution of defense counsel
simply because there are certain potential hazards involved in joint representation.” See Rowe v.
DeJesus, id. (emphasis added).
25. In support of their motion, plaintiff Moran submits an Affidavit detailing what he
alleges as a “manifest conflict” between and among all three Defendants which requires
disqualification of my firm from representation in this action. He argues certain instances that
allegedly occurred from 2018 to 2022 in support of his contention that the interests of Walters,
Henry, and the Club are now adverse. See Plaintiff Aff., ¶¶11- 32. Plaintiff’s counsel argues that
in light of the “conflicts” detailed in Moran’s Affidavit, numerous lawsuits are colorable between
and among the defendants and that “litigation could break out at any moment. See Pascazi Aff.
¶¶19-21.
26. First, as discussed above, plaintiff argues that the Salem Associates Hunt Club has
paid for the defense of this action of both the natural person Defendants (Henry and Walters) in
this action, however, no indemnification and defense clause appears in the administrative
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documents (i.e. Bylaws, Rules and Regulations of the Club). See Plaintiff Aff. ¶¶7-8. As such,
Plaintiff argues that it appears claims for embezzlement and/or civil conversion by the Club would
be ripe and should be pursued against Henry and Walters, and that Henry and Walters are using
the Club “as their piggy bank to defend themselves from their unlawful conduct towards me.” See
Plaintiff Aff. ¶¶ 9-10.
27. This is simply not true. All three defendants have been provided with a defense from
the Club’s commercial liability insurance carrier, who has been paying any invoice from our firm.
28. The next allegation is that in February 2021, Joseph Henry and Michael Walters
“acknowledged and allowed the unlawful use by two (2) members of the Club of an ariel drone,
during a Club deer hunt on Club property in the NY Adirondack State Park, and then took zero
steps subsequently to punish the two (2) members who acted so outrageously.” See Plaintiff Aff.
¶ 11.
29. This allegation is completely false. In fact, as detailed in the annexed Affidavit of
Michael Walters, the two Club members who had arrived to the Club premises with the drone
arrived with it in a broken condition. See Walters Aff. ¶5. The two members had stopped along
their way to the premises to test drive the drone when they crashed it, thereby rendering it broken
and disabled before they even arrived at the Club. See Walters Aff. ¶5. Regardless, Walters
affirms that if the Club members had attempted to utilize the drone at the Camp during the deer
hunt, neither he nor Henry, nor any member of the Board, would have permitted the use of the
drone during the hunt. See Walters Aff. ¶5.
30. Plaintiff next alleges that on or about February 8, 2022, Henry allowed his sponsored
probationary member of the Club, his son Max Henry, to hunt with another sponsored probationary
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member of the club, Michelle Moreno, on the Club’s property, without the presence of a mandatory
Club sponsor at the probationary parties’ side. See Plaintiff Aff. ¶ 16.
31. This allegation is also false. See Walters Aff. ¶7. First, there is no deer hunting
during February 2022, as no one is able to access Camp after mid-December due to snow
accumulation. The last week of deer hunting was the week of December 6, 2021 to December 12,
2021. Further, all times while hunting at the premises, both Max Henry and Michelle Moreno
were accompanied by their Sponsors, Joe Henry and Mike Moreno, in accordance with the Rules
of the Club. See Walters Aff. ¶7.
32. The next allegation is perhaps the most outrageous, as Plaintiff alleges that Walters
and Henry have “gone rogue” and are “running amuck” by changing the club’s membership
character from a private all male brotherhood to a mixed gender organization without the Club’s
vote. See Plaintiff Aff. ¶ 20-22.
33. This allegation is troubling for a multitude of reasons. However, regardless of
Plaintiff’s archaic and misogynistic beliefs, neither Walters nor Henry in any way acted contrary
to the Board or the Club Members. The decision to allow Michelle Moreno into the Club, the first
female member in the Club’s history, was first approved by an overwhelming majority of the Club
Members at the Club’s annual meeting (save for the exception of the Plaintiff Arthur Moran who
felt that she should not be permitted to be a Club Member), and then was ultimately approved by
a unanimous vote of the 6 person Board. See Walters Aff. ¶11-12.
34. To allege that “Henry or Walters or both could now be removed from the club or sued
by the club in a civil action for inter alia Brech of Fiduciary Duty” (See Plaintiff Aff. ¶ 23) is
simply absurd and frivolous. In fact, after Plaintiff expressed his opinion to all of the members of
the Club about how allowing a female into the club would change the ‘dynamics’ of the Club, the
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Board as a whole wrote to Plaintiff and asked him to (1) apologize for his gender bias comments;
(2) to clarify to the Members of the Club that the opinion was his alone and does not reflect the
view of the Board; and (3) informed him that the Board refuses to tolerate an opinion of that sort
and if he failed to apologize he would be removed from the Club. Thus, Plaintiff knows all too
well that all three defendants, the Club, Joseph Henry, and Michael Walters are all unified on this
topic. See Walters Aff. ¶13.
35. And finally, at one last feigned attempt to raise any scintilla of appearance of
impropriety and conflict, the Plaintiff points out the Court that horses are not dogs, and accuses
Walters of boarding horses at the property during the years 2018-2022, alleging that he could now
be removed from and sued by the Club. See Plaintiff Aff. ¶ 25-31.
36. Walters does acknowledge that he has brought a horse to the Camp at the Club’s
property on two occasions for a period of four to five days each time during a time period where
he had reserved the Camp for his own private use in accordance with the Club Rules. See Walters
Aff. ¶ 16. However, at the time that he was bringing the horse, he had informed other members of
the Club’s Board, including the plaintiff himself who was Treasurer of the Board at the time, and
received no opposition or complaint regarding same. See Walters Aff. ¶ 17.
37. It is frivolous to allege that a lawsuit over bringing a horse to Camp is “on the verge
of breaking out” years after a horse was brought to Camp and with the consent of the Board.
38. In fact, all of the allegations raised by Plaintiff are a complete waste of judicial
economy and a waste of our time and resources to be forced to rebut. The Court system should
not be the personal expression board of a litigant, or even an attorney, to vent about issues which
fit into no cognizable cause of action.
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39. There exist no conflicts of interest nor appearance of impropriety which would
disqualify my firm from representing all three defendants in this action, and I ask the Court to
award our office attorney’s fees for having to expend our time and resources opposing this
frivolous motion.
CONCLUSION
WHEREFORE, based upon all of the foregoing, it is respectfully requested that the Court
issue an Order denying the plaintiff’s motion to disqualify Defendants’ counsel in its entirety;
awarding reimbursement for attorney’s fees in connection with opposing Plaintiff’s frivolous
motion; as well as granting such other and further relief as to the Court may seem just and proper.
DATED: Brewster, New York
December 21, 2023
Louis U. Gasparini
LOUIS U. GASPARINI
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF PUTNAM
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ARTHUR B. MORAN,
Plaintiff,
202.8-b Certification
-against-
Index No.: 500286/2023
SALEM ASSOCIATES HUNT CLUB, MICHAEL
WALTERS, in his Personal and Official Capacity, and
JOSEPH HENRY in his Personal and Official Capacity,
Defendants.
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Pursuant to Uniform Rules for Trial Courts § 202.8-b, I hereby certify that this Affirmation,
exclusive of this certification page, complies with the word count limit of 7,000 as set forth therein.
The total number of words in this Affirmation is 3,753 exclusive of any captions, table of contents,
table of authority and signature block, pursuant to the word count in Microsoft Word, the word-
processing system used to prepare this document.
DATED: Brewster, New York
December 21, 2023
Louis U. Gasparini
LOUIS U. GASPARINI
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FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PUTNAM -------------------------------------------------------------------X ARTHUR B. MORAN, Plaintiff, AFFIRMATION IN OPPOSITION -against- Index No.: 500286/2023 SALEM ASSOCIATES HUNT CLUB, MICHAEL WALTER in his Personal and Official Capacity, and JOSEPH HENRY in his Personal and Official Capacity, Defendants. -------------------------------------------------------------------X LOUIS U. GASPARINI, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am Partner of the law firm of SCHWAB & GASPARINI, PLLC, attorneys for the defendants, SALEM ASSOCIATES HUNT CLUB, MICHAELWALTER in his Personal and Official Capacity, and JOSEPH HENRY in his Personal and Official Capacity (hereinafter “Answering Defendants”), in the above-entitled action; and, upon a review of the file maintained by this office, I am fully familiar with the facts and circumstances heretofore had herein. 2. This affirmation is being respectfully submitted in opposition to the motion by the plaintiff, ARTHUR B. MORAN (hereinafter “Plaintiff”), for an Order disqualifying Defendants’ Counsel from further representation in this Action and granting such other and further relief as to the Court seems just, fitting and proper. 3. Contrary to the meritless arguments presented in his motion papers, the Plaintiff’s motion should be denied in its entirety given his utter failure to establish the existence of a conflict nor the appearance of impropriety by my firm’s continued representation of all defendants in this action. 1 1 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 A. Plaintiff’s motion to disqualify Defendants’ Counsel should be denied given that there exists no conflict nor the appearance of impropriety by the continued representation of all defendants. 4. The plaintiff’s lawyer first raised the alleged conflict of interest in a letter dated July 10, 2023, in which counsel requested that our firm withdraw from jointly representing the Defendants in this action. A copy of Pascazi’s correspondence is annexed hereto as Exhibit “A”. 5. The arguments presented by the plaintiff’s lawyer are somewhat of a headscratcher— but he appears to argue that because this law firm represents all the defendants jointly, and that because it “is impossible for the public to truly know the relationships and inter-relationships between all three [d]efendants,” there must somehow be a conflict of interest. See Plaintiff, Aff., ¶13. In reading further into the rambling affirmation of plaintiff’s counsel, it is difficult to follow the argument, but what can be gleaned is that because “Walters . . . [and] Henry are both officers of the Defendant club Salem” one attorney cannot represent them. See Plaintiff, Aff., ¶22. 6. Even reading the attached supporting affidavit of the plaintiff himself, which was obviously prepared by his lawyer, it is equally difficult to see what the apparent alleged conflict of interest is in joint representation. Initially, the plaintiff argues that the individual named defendants are “using the club as their piggy bank to defend themselves from their unlawful conduct towards [him] . . . See Plaintiff, Aff., ¶10. He further explains that this allegation is based on the claim that the Club has “paid for the defense in this action of both of the natural person [d]efendants in this action to wit: Michael Walters . . . and Joseph Henry. . . .” See id., at ¶7. 7. While not relevant, the court should know that all three defendants have been provided with a defense from the Club’s commercial liability insurance carrier, who has been paying any invoice from our firm. 2 2 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 8. When reading the affidavit even further, it becomes even clearer, that the ramblings contained in the plaintiff’s lawyer’s affirmation seem to carry over into the plaintiff’s affidavit. Specifically, the plaintiff goes on about the use of an aerial drone while hunting deer, see Plaintiff, Aff., ¶11-12, how the Club should punish the defendants for engaging in such activity, see Plaintiff, Aff., ¶14, and because these defendants engaged in such conduct, and the Club has not removed them, there is some kind of a conflict of interest inn joint representation. See Plaintiff, Aff., ¶15. 9. Reading even further, the story gets better. The allegation by plaintiff is then that the named defendants made the unconscionable decision to “dramatically” change the Club’ character “from a private all male brotherhood” to a “mixed gender organization”. See Plaintiff, Aff., ¶20. In doing so, the plaintiff believes that they have “gone rogue and are running amuck.” See Plaintiff, Aff., ¶22. 10. There are other claims about “[h]orses are not dogs, ” see Plaintiff, Aff., ¶26, which frankly isn’t even worth describing further. 11. In any event, after the plaintiff’s lawyer corresponded with this office, we attempted to explain thoroughly to him the frivolity of his claim. We explained to counsel how the defense was unified, how courts have rejected such instances of an alleged conflict of interest, and provided counsel with appropriate case law to dissuade him from wasting the Court’s time which such a meritless endeavor. A copy of our responsive correspondence is annexed hereto as Exhibit “B”. 12. Given that we wrote to him in the Summer, and have heard nothing since that time, we assumed that the issue would have been resolved. Sadly, the caselaw cited in his July 10, 2023 letter is identical to the caselaw cited in the Affirmation in Support of his Motion to Disqualify— which we explained to him was simply irrelevant to this case. Notably, in our response letter we 3 3 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 addressed each case cited by counsel, and not one demonstrates any type of conflict of interest in joint representation. 13. In Halberstam v. Halberstam, 122 A.D.3d 679 (2d Dep’t 2014), a divorce action, the attorney for the plaintiff was the parties’ brother-in-law, the plaintiff-wife’s sister’s husband. Prior to commencement of the divorce action, the defendant-husband had confided in his brother-in-law to discuss financial and other personal matters, under the assurance that the brother-in-law would not represent either party in the event an action for divorce was commenced. 14. In Matter of Stasser, 129 A.D.3d 457 (1st Dep’t 2015), the Court determined that two co-guardians of the incapacitated person in a guardianship proceeding could not be represented by the same attorney due to materially adverse interests of the two co-guardians. One co-guardian was the incapacitated person’s wife, and the other a close family friend. The Court held that there was a conflict of interest arising from their mutual financial dependence on the incapacitated person, in that the Trust was created for the support of his wife, with the residuary to pass to his close family friend. The more assets spent during the wife’s lifetime will of necessity mean less assets that pass to the close family friend. Thus, representation by a single firm or attorney would create the potential for a conflict, and impermissibly place the lawyer in a position which would give the appearance of representing conflicting interests. 15. In Roddy v Nederlander, 96 A.D.3d 509 (1st Dep’t 2012) the third-party defendant moved to disqualify counsel for the defendants Nederlander and Gershwin. The third-party defendant was a contractual indemnitor of defendant Gershwin only. It was held that a potential for conflict exists resulting from the Law Firm’s joint representation of both defendants, as each defendant had a competing interest in minimizing its proportional share of the damages. The Law Firm had rejected the third-party’s insurer’s agreement to accept defense and indemnity of 4 4 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 Gershwin, with the explanation that the third-party defendant’s insurer was also obligated to contractually indemnify Nederlander. The Appellate Division held that denying the motion would preclude third-party defendant, as contractual indemnitor for Gershwin, only one of the named defendants, from exercising its right to properly defend the action in an effort to limit its exposure to Gershwin’s proportional share of liability. 16. In Tarakoff v. NYS Education Department, 130 A.D.3d 1331 (3d Dep’t 2015), the Petitioner was a licensed social worker who had been investigated by the Office of Professional Discipline of the NYS Education Department after receiving a complaint from one of his client’s, JC. He was eventually charged with negligence, incompetence, and unprofessional conduct for actively socializing with JC’s then husband and father, and for failure to maintain accurate records. Petitioner alleged that he did not receive a fair hearing because his chosen counsel was disqualified. However, his chosen counsel had already been representing JC in a separate civil rights action against her employer in federal court. To effectively represent the Petitioner, he would have had to cross-examine JC. His simultaneous representation of her in a pending federal action potentially gave him access to information not otherwise available for use on cross-examination, and the attorney would be attempting to diminish her credibility whereas an opposite result would be pursued in her federal action. This was determined to be a sufficient conflict of interest to disqualify the attorney. 17. Here, there are no conflicts that would warrant disqualification. Our firms’ representation of all three defendants does not represent differing interests. To the contrary, Plaintiff’s very own Complaint continuously and repeatedly lumps all three defendants into every single allegation. A copy of the Complaint is annexed hereto as Exhibit “C”. For example, the Complaint alleges that Defendants failed to perform the Contract (Ex. “C”, ¶31); Plaintiff has 5 5 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 been, and continues to be damaged by Defendants’ Breach (Ex. “C”, ¶32); Plaintiff and Defendants were parties to a contract (Ex. “C”, ¶38); Defendants acted deliberately and in a manner not expressly forbidden by the Contract, to deprive the Plaintiff, prevent performance of the Contract or withhold its benefits from the Plaintiff (Ex. “C”, ¶39); Defendants intended to inflict harm upon Plaintiff (Ex. “C”, ¶42); Plaintiff incurred special damages by virtue of Defendants’ conduct (Ex. “C”, ¶43); There was/is no valid excuse for Defendants’ conduct toward Plaintiff (Ex. “C”, ¶44); Defendants’ conduct toward Plaintiff was otherwise lawful (Ex. “C”, ¶45); Plaintiff has identified a bone fide justiciable dispute between himself and Defendants (Ex. “C”, ¶45), concerning Defendants’ unlawful termination of Plaintiff’s membership in Salem Associates Hunt Club (Ex. “C”, ¶47); Pursuant to CPLR 3001, 3017(b) and the common law of this State, the court must declare the rights and respective legal relations of the parties, as regards to Defendants’ termination of Plaintiff’s membership in Salem Associates Hunt Club, which was/is unlawful, unenforceable, null and void (Ex. “C”, ¶48). 18. There is not one single allegation in Plaintiff’s Complaint which singles out one defendant as against the others. Each and every count alleges that all defendants acted together to allegedly breach the by-laws, knowingly benefit at the Plaintiff’s expense, breach the implied covenant of good faith and fair dealing, and commit prima facie tort. Each and every count on the Prayer for Relief seeks judgment against “Defendants.” Not one count singles out an individually named party to this action. 19. In addition, each and every defense by the defendants is unified. The decision to terminate Plaintiff Moran’s membership was a joint decision by the Board, of which the individually named defendants are members of, after Moran was given the opportunity to issue an apology to the entire membership for his gender bias comments. Moran was informed that if he 6 6 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 failed to apologize his membership would be terminated. He failed to do so. As such, it was a joint decision by the Board to terminate his membership in accordance with the terms of the By- Laws. 20. A party's right to be represented by counsel of his or her own choosing is a valued right which will not be superseded absent a clear showing that disqualification is warranted. See Mediaceja v Davidov, 119 A.D.3d 911 (2d Dep’t 2014); Zutler v Drivershield Corp., 15 A.D.3d 397 (2d Dep’t 2005). The moving party bears the burden of showing that disqualification is warranted See Aryeh v Aryeh, 14 A.D.3d 634 (2d Dep’t 2005). 21. In Robbins v. Ellman the Appellate Division First Department reversed an Order of the Supreme Court, New York County that had disqualified that defendant law firm from appearing on behalf of more than one defendant. See Robbins v. Ellman, 65 A.D.2d 519 (1st Dep’t 1978). The Appellate Division held that disqualifying the law firm was in error, in light of the fact that it was not established that the “director” and “tenant” groups had divided, adverse and conflicting interests. See Robbins, 65 A.D.2d at 519. 22. In Olmoz v. Town of Fishkill, the Appellate Division Second Department affirmed a denial of plaintiff’s motion to disqualify counsel for defendant. The Appellate Division held that a plaintiff’s mere conclusory assertions that there is a conflict of interest is insufficient to warrant a hearing as to whether there is a conflict of interest. See Olmoz v. Town of Fishkill, 258 A.D.2d 447 (2d Dep’t 1999). The Appellate Division held that the Supreme Court providently exercised its discretion in refusing to disqualify defense counsel since the plaintiff failed to present anything more than sheer speculation as to the existence of a conflict of interest. Id. 23. In Rowe v. DeJesus, 106 A.D.2d 284 (1st Dep’t 1984), the defendants’ firm was representing nine defendants in the action. The Appellate Division First Department held that the 7 7 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 plaintiff failed to demonstrate any substantial public interest which would preclude the defendants from exercising their right to representation by an attorney of their choice. The Appellate Division cited to the Court of Appeals which had held that although a party does not possess an absolute right to selection of legal counsel, “any restriction imposed on that right will be carefully scrutinized . . . and will not yield unless confronted with some overriding competing public interest…” (Matter of Abrams, 62 N.Y.2d 183 [1984]). Further, the Rowe Court held that defendants may not be deprived of their choice of counsel merely on the basis of their adversary’s allegation that there exists the possibility of a conflict of interest among the various defendants. 24. Similarly, here, “it is in appropriate for the plaintiff to impose, over defendants’ objections and in the absence of any overriding public interest, a substitution of defense counsel simply because there are certain potential hazards involved in joint representation.” See Rowe v. DeJesus, id. (emphasis added). 25. In support of their motion, plaintiff Moran submits an Affidavit detailing what he alleges as a “manifest conflict” between and among all three Defendants which requires disqualification of my firm from representation in this action. He argues certain instances that allegedly occurred from 2018 to 2022 in support of his contention that the interests of Walters, Henry, and the Club are now adverse. See Plaintiff Aff., ¶¶11- 32. Plaintiff’s counsel argues that in light of the “conflicts” detailed in Moran’s Affidavit, numerous lawsuits are colorable between and among the defendants and that “litigation could break out at any moment. See Pascazi Aff. ¶¶19-21. 26. First, as discussed above, plaintiff argues that the Salem Associates Hunt Club has paid for the defense of this action of both the natural person Defendants (Henry and Walters) in this action, however, no indemnification and defense clause appears in the administrative 8 8 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 documents (i.e. Bylaws, Rules and Regulations of the Club). See Plaintiff Aff. ¶¶7-8. As such, Plaintiff argues that it appears claims for embezzlement and/or civil conversion by the Club would be ripe and should be pursued against Henry and Walters, and that Henry and Walters are using the Club “as their piggy bank to defend themselves from their unlawful conduct towards me.” See Plaintiff Aff. ¶¶ 9-10. 27. This is simply not true. All three defendants have been provided with a defense from the Club’s commercial liability insurance carrier, who has been paying any invoice from our firm. 28. The next allegation is that in February 2021, Joseph Henry and Michael Walters “acknowledged and allowed the unlawful use by two (2) members of the Club of an ariel drone, during a Club deer hunt on Club property in the NY Adirondack State Park, and then took zero steps subsequently to punish the two (2) members who acted so outrageously.” See Plaintiff Aff. ¶ 11. 29. This allegation is completely false. In fact, as detailed in the annexed Affidavit of Michael Walters, the two Club members who had arrived to the Club premises with the drone arrived with it in a broken condition. See Walters Aff. ¶5. The two members had stopped along their way to the premises to test drive the drone when they crashed it, thereby rendering it broken and disabled before they even arrived at the Club. See Walters Aff. ¶5. Regardless, Walters affirms that if the Club members had attempted to utilize the drone at the Camp during the deer hunt, neither he nor Henry, nor any member of the Board, would have permitted the use of the drone during the hunt. See Walters Aff. ¶5. 30. Plaintiff next alleges that on or about February 8, 2022, Henry allowed his sponsored probationary member of the Club, his son Max Henry, to hunt with another sponsored probationary 9 9 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 member of the club, Michelle Moreno, on the Club’s property, without the presence of a mandatory Club sponsor at the probationary parties’ side. See Plaintiff Aff. ¶ 16. 31. This allegation is also false. See Walters Aff. ¶7. First, there is no deer hunting during February 2022, as no one is able to access Camp after mid-December due to snow accumulation. The last week of deer hunting was the week of December 6, 2021 to December 12, 2021. Further, all times while hunting at the premises, both Max Henry and Michelle Moreno were accompanied by their Sponsors, Joe Henry and Mike Moreno, in accordance with the Rules of the Club. See Walters Aff. ¶7. 32. The next allegation is perhaps the most outrageous, as Plaintiff alleges that Walters and Henry have “gone rogue” and are “running amuck” by changing the club’s membership character from a private all male brotherhood to a mixed gender organization without the Club’s vote. See Plaintiff Aff. ¶ 20-22. 33. This allegation is troubling for a multitude of reasons. However, regardless of Plaintiff’s archaic and misogynistic beliefs, neither Walters nor Henry in any way acted contrary to the Board or the Club Members. The decision to allow Michelle Moreno into the Club, the first female member in the Club’s history, was first approved by an overwhelming majority of the Club Members at the Club’s annual meeting (save for the exception of the Plaintiff Arthur Moran who felt that she should not be permitted to be a Club Member), and then was ultimately approved by a unanimous vote of the 6 person Board. See Walters Aff. ¶11-12. 34. To allege that “Henry or Walters or both could now be removed from the club or sued by the club in a civil action for inter alia Brech of Fiduciary Duty” (See Plaintiff Aff. ¶ 23) is simply absurd and frivolous. In fact, after Plaintiff expressed his opinion to all of the members of the Club about how allowing a female into the club would change the ‘dynamics’ of the Club, the 10 10 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 Board as a whole wrote to Plaintiff and asked him to (1) apologize for his gender bias comments; (2) to clarify to the Members of the Club that the opinion was his alone and does not reflect the view of the Board; and (3) informed him that the Board refuses to tolerate an opinion of that sort and if he failed to apologize he would be removed from the Club. Thus, Plaintiff knows all too well that all three defendants, the Club, Joseph Henry, and Michael Walters are all unified on this topic. See Walters Aff. ¶13. 35. And finally, at one last feigned attempt to raise any scintilla of appearance of impropriety and conflict, the Plaintiff points out the Court that horses are not dogs, and accuses Walters of boarding horses at the property during the years 2018-2022, alleging that he could now be removed from and sued by the Club. See Plaintiff Aff. ¶ 25-31. 36. Walters does acknowledge that he has brought a horse to the Camp at the Club’s property on two occasions for a period of four to five days each time during a time period where he had reserved the Camp for his own private use in accordance with the Club Rules. See Walters Aff. ¶ 16. However, at the time that he was bringing the horse, he had informed other members of the Club’s Board, including the plaintiff himself who was Treasurer of the Board at the time, and received no opposition or complaint regarding same. See Walters Aff. ¶ 17. 37. It is frivolous to allege that a lawsuit over bringing a horse to Camp is “on the verge of breaking out” years after a horse was brought to Camp and with the consent of the Board. 38. In fact, all of the allegations raised by Plaintiff are a complete waste of judicial economy and a waste of our time and resources to be forced to rebut. The Court system should not be the personal expression board of a litigant, or even an attorney, to vent about issues which fit into no cognizable cause of action. 11 11 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 39. There exist no conflicts of interest nor appearance of impropriety which would disqualify my firm from representing all three defendants in this action, and I ask the Court to award our office attorney’s fees for having to expend our time and resources opposing this frivolous motion. CONCLUSION WHEREFORE, based upon all of the foregoing, it is respectfully requested that the Court issue an Order denying the plaintiff’s motion to disqualify Defendants’ counsel in its entirety; awarding reimbursement for attorney’s fees in connection with opposing Plaintiff’s frivolous motion; as well as granting such other and further relief as to the Court may seem just and proper. DATED: Brewster, New York December 21, 2023 Louis U. Gasparini LOUIS U. GASPARINI 12 12 of 13 FILED: PUTNAM COUNTY CLERK 12/22/2023 11:04 AM INDEX NO. 500286/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/22/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PUTNAM -------------------------------------------------------------------X ARTHUR B. MORAN, Plaintiff, 202.8-b Certification -against- Index No.: 500286/2023 SALEM ASSOCIATES HUNT CLUB, MICHAEL WALTERS, in his Personal and Official Capacity, and JOSEPH HENRY in his Personal and Official Capacity, Defendants. -------------------------------------------------------------------X Pursuant to Uniform Rules for Trial Courts § 202.8-b, I hereby certify that this Affirmation, exclusive of this certification page, complies with the word count limit of 7,000 as set forth therein. The total number of words in this Affirmation is 3,753 exclusive of any captions, table of contents, table of authority and signature block, pursuant to the word count in Microsoft Word, the word- processing system used to prepare this document. DATED: Brewster, New York December 21, 2023 Louis U. Gasparini LOUIS U. GASPARINI 13 13 of 13