Motion to Disqualify Counsel in Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc| Trellis.Law

On February 10, 2023 a Motion-Secondary was filed involving a dispute between Kpl Green Llc, and Crazy Beer World Inc, Crazy Beer World, Inc., Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Morgenstern Devoesick Pllc, As Escrow Agent, for Commercial - Contract in the District Court of Rockland County.

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FILED: ROCKLAND COUNTY CLERK 01/26/2024 03:46 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/26/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
----------------------------------------------------------------------X
KPL GREEN LLC,

Plaintiff, Index No: 030709/2023

-against- Motion Seq. No. 002

GREENPORT/HUDSON ASSOCIATES, LLC,
MORGENSTERN DEVOESICK, PLLC,
as Escrow Agent, and CRAZY BEER WORLD, INC.,

Defendants.
---------------------------------------------------------------------X

DEFENDANT MORGENSTERN DEVOESICK, PLLC’s REPLY
MEMORANDUM OF LAW IN FURTHER SUPPORT OF ITS
MOTION TO DISQUALIFY PLAINTIFF’S ATTORNEYS

LEWIS BRISBOIS BISGAARD & SMITH LLP
Jeffrey Y. Spiegel, Esq., Esq.
Stephen G. Rickershauser, Esq.
Attorneys for Defendant
Morgenstern DeVoesick, PLLC
77 Water Street, Suite 2100
New York, New York 10005
(212) 232-1300
Jeffrey.spiegel@lewisbrisbois.com
Stephen.rickershauser@lewisbrisbois.com

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TABLE OF CONTENTS
Page

PRELIMINARY STATEMENT .....................................................................................................1
ARGUMENT ...................................................................................................................................2
I. MR. CONDON IS A NECESSARY WITNESS .................................................................2
A. Mr. Condon has Separate and Independent Knowledge of the Facts
Surrounding Termination of the Beer Lease ............................................................3
B. Mr. Condon Has Separate and Independent Knowledge Regarding the
Alleged Non-Performance of the Parties .................................................................5
C. Mr. Condon Has Separate and Independent Knowledge Regarding the
Contract ....................................................................................................................7
D. Mr. Condon’s Testimony Will Be Adverse and Prejudicial to Plaintiff ..................8
II. MS. PAXOS IS A NECESSARY WITNESS .....................................................................9
A. Ms. Paxos has Separate and Independent Knowledge of Material Issues ...............9
B. Ms. Paxos Should be Disqualified ...........................................................................9
III. CONDON PAXOS PLLC MUST BE DISQUALIFIED ..................................................11
CONCLUSION ..............................................................................................................................13

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TABLE OF AUTHORITIES

Page

State Cases

Cardinale v. Golinello,
43 N.Y.2d 288 (1977) ..............................................................................................................13

Eujoy Realty Corp. v. Van Wagner Communications, LLC,
22 N.Y.3d 413 (2013) ..............................................................................................................12

Falk v. Gallo
73 A.D.3d 685 (2d Dept. 2010) .................................................................................................7

Friia v. Palumbo,
89 A.D.3d 896 (2d Dept. 2011) .............................................................................................4, 5

Gould v. Decolator,
131 A.D.3d 448 (2d Dept. 2015) .............................................................................................11

Greene v. Greene,
47 N.Y.2d 447 (1979) ..............................................................................................................12

Heelan v. Lockwood,
143 A.D.2d 881 (2d Dept. 1988) .............................................................................................11

Jamacia Pub. Serv. Co. Ltd. v. AIU Ins. Co.,
92 N.Y.2d 631 (1998) ..............................................................................................................11

NY Kids Club 125 5th Ave., LLC v. Three Kings, LLC,
133 A.D.3d 580 (2d Dept. 2015) .............................................................................................13

Spielberg v. Twin Oaks Constr. Co., LLC,
134 A.D.3d 1015 (2d Dept. 2015) .........................................................................................3, 9

Court Rules

N.Y. Comp. Codes R. & Regs. Title 22 § 1200.21 (1999) ........................................................1, 12

Rule 3.7(b)(1) .............................................................................................................................2, 12

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PRELIMINARY STATEMENT1

MDP’s moving papers demonstrated that Mr. Condon, Ms. Paxos and their firm Condon

Paxos PLLC should be disqualified as counsel for Plaintiff pursuant to N.Y. Comp. Codes R. &

Regs. Title 22 §1200.21 (1999). Plaintiff’s opposition, which consists of nothing more than

conclusory, self-serving and misleading statements, is factually and legally insufficient to overcome

that showing. Plaintiff’s attempt to frame MDP’s instant motion as a “tactical derailment weapon for

strategic advantage” should be given short shrift by this Court as the pleadings, affidavits, and

documentary evidence submitted in this action mandate disqualification of both attorneys and their

law firm.

The fatal flaw of Plaintiff’s opposition is the misguided assertion that the only material issue

in dispute pertains to the Contract itself, as to which Mr. Condon attests to having no separate or

independent knowledge. Mr. Condon’s attempt to minimize his knowledge of material facts relating

to the underlying transaction and his suggestion that his knowledge is duplicative is flatly refuted by

the record evidence properly before this Court, which clearly shows that his testimony is necessary

with respect to several issues in dispute and that such testimony may be prejudicial to Plaintiff.

With respect to Ms. Paxos, Plaintiff attempts to evade MDP’s showing that Ms. Paxos is a

necessary witness by arguing instead that MDP’s application for disqualification is moot because

Ms. Paxos evidently does not represent Plaintiff in this action. Even presuming that Ms. Paxos is not

counsel of record for Plaintiff in this matter – a fact which is not at all clear from the record – the

depth of her involvement in the underlying transaction, which is not in dispute, and her status as Mr.

Condon’s partner in a small firm warrants her disqualification.

1
Capitalized terms used herein without definition shall have the same meanings assigned to them in
MDP’s Memorandum of Law, dated December 29, 2023 (“MDP Memo.”) (NYSCEF Doc. No. 63).

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Moreover, since MDP has demonstrated that Mr. Condon and Ms. Paxos are necessary

witnesses in this action who must be disqualified, a fortiori their firm must also be disqualified given

that they are the firm’s only two attorneys. This Court should not be persuaded by Plaintiff’s ill-fated

attempts to isolate Ms. Paxos from Mr. Condon and their firm to create the illusion that no conflict

exists warranting disqualification. Given that both attorneys are necessary witnesses, as

demonstrated and supported by the record, the Court need not consider whether there is a conflict of

interest. However, in response to Plaintiff’s arguments in opposition, MDP submits that a very real

conflict of interests exists, which warrants disqualification of both attorneys and the firm. Lastly, in

direct response to Plaintiff’s arguments set forth in opposition, MDP submits that disqualification of

Mr. Condon and the firm would nevertheless be warranted under Rule 3.7(b)(1) given the

overwhelming evidence that Ms. Paxos is a necessary witness whose testimony may be prejudicial to

Plaintiff.

ARGUMENT

I. MR. CONDON IS A NECESSARY WITNESS

Plaintiff’s argument that Mr. Condon should not be disqualified rests entirely upon the false

proposition that he has “no independent or separate knowledge of the facts of the [Contract]” and

thus, is “not likely to be a witness to a significant issue of fact.” (Pltf. Memo p.5) Even assuming that

Plaintiff was able to show that Mr. Condon’s knowledge of the Contract itself would be duplicative

at best, Plaintiff has failed to rebut MDP’s clear showing that he is a necessary witness with respect

to several other material issues in dispute, and that his testimony would be prejudicial to Plaintiff. 2

2
Plaintiff misleadingly states in its opposing brief (“Pltf. Memo”) that Defendants “disingenuously
omitted from its standard of review that they possess the burden of proof as the party seeking
disqualification.” (Pltf. Memo. p.10) However, as set forth by MDP in its moving papers, 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. (MDP
(footnote continued)

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A. Mr. Condon has Separate and Independent Knowledge of the Facts
Surrounding Termination of the Beer Lease

As demonstrated by MDP in its moving papers, the record before the Court lays bare that Mr.

Condon has separate and independent knowledge of material and disputed facts relating to Beer

World’s purported termination of the Beer Lease and the ensuing dispute relating to the purported

escrow funds.

The evidence before the Court confirms that on January 24, 2023, Mr. Condon independently

executed and sent a letter to GHA, MDP and Beer World acknowledging and accepting Beer

World’s (alleged) termination of the Beer Lease. Mr. Condon’s letter, which pre-dates the

commencement of the instant action, states, in pertinent part:

In your December 30, 2022 email…you advised that should the extension of the
liquor license contingency not be granted that you are terminating and canceling the
lease. Please be advised that as of that date, my client, KPL Green LLC, was the
landlord and owner in possession of the [Premises] and at no time was any extension
granted. Therefore, we accept your client, Crazy Beer World, Inc.’s termination of
the Lease.

(Paxos Aff., Ex. H) (emphasis added)

On the same date, Mr. Condon sent a second letter to GHA and MDP demanding

disbursement of the Escrow Fund. In the second letter, Mr. Condon states, in pertinent part:

Enclosed herewith please find the cancellation letter which was served upon your
office, GHA,… counsel for tenant, and Crazy Beer World, Inc., earlier today.
Pursuant to Paragraph 2, of the [Contract], this cancellation triggers the disbursement
of the Escrow Fund which you are holding on behalf of my client.

(Paxos Aff., Ex. I) (emphasis added)

These letters, which Mr. Condon clearly prepared, go to the heart of Plaintiff’s claim that

Beer World terminated the Beer Lease; a claim which Beer World vehemently denies and for which

Memo. p. 7, citing Spielberg v. Twin Oaks Constr. Co., LLC, 134 A.D.3d 1015, 1015 (2d Dept.
2015) (emphasis added)). MDP submits that it has meet its burden of making such showing here,
and Plaintiff’s opposition otherwise fails to overcome that showing.

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a material factual dispute exits.3 Specifically, as the first letter constitutes the “cancellation letter”

which in effect triggered the purported cancellation of the Beer Lease, the circumstances

surrounding the decision to draft and send such letter are materially relevant. Ms. Paxos has not and

cannot demonstrate that she had any involvement with Plaintiff’s decision to terminate the Beer

Lease or had any involvement with the drafting of these two letters. (See Paxos Aff. dated January

19, 2024 [“2d Paxos Aff.”]) It is telling that Mr. Condon refers to Plaintiff as “my client” in both

letters, and there is no indication that Ms. Paxos was included on the letters or that she drafted them.4

Moreover, attached to Mr. DeVoesick’s reply affidavit (“Reply Aff.") as Exhibit S are follow

up correspondence between Mr. Condon, MDP and Beer World’s counsel with the subject line “Beer

World Cancellation of Lease - 300 Fairview Avenue, Hudson, NY” which are being proffered now

to directly refute Plaintiff’s arguments in opposition that, inter alia¸ Mr. Condon’s knowledge is

merely cumulative. As can be seen by the substance of this correspondence, which followed the

letters, Mr. Condon was intricately involved in the purported termination of the Beer Lease. Ms.

Paxos, by contrast, was not involved, which the letters and follow-up correspondence clearly

demonstrate.

Accordingly, it remains indisputable that Mr. Condon will be a necessary witness in this

litigation, as he has independent knowledge regarding material issues of fact surrounding the

purported termination of the Beer Lease. On this point, Plaintiff fails to distinguish the current matter

from the Second Department’s holding in Friia v. Palumbo, 89 A.D.3d 896, 896 (2d Dept. 2011).

3
As stated in MDP’s moving papers, Beer World specifically denies terminating the Beer Lease and
seeks judgment declaring that the Beer Lease is in full force and effect. (Speigel Aff. Ex. F ¶¶ 30-45)
4
Ms. Paxos’ affidavit stating “[Mr. Condon] never had any independent written communications
with GHA, MDP, or its members” (2d Paxos Aff. ¶ 8) is belied by these letters, which were attached
to Ms. Paxos’ first affidavit and which are already before the Court. The Court should recognize that
Plaintiff’s opposition is devoid of credibility.

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Here, as in Friia, Mr. Condon is the “only person,” other than Plaintiff, who has “knowledge of the

advice he gave” to his client regarding the purported termination of the Beer Lease. Id. at 896.

Critically, the issue of whether the Beer Lease was terminated is material to both Plaintiff’s

declaratory judgment claim against Beer World and its breach claims against MDP and GHA, which

are predicated on termination of the Beer Lease. (Compare Compl. First, Second and Third Causes

of Action) In that sense, Mr. Condon will be a necessary witness regarding the entire scope of

Plaintiff’s causes of action.

B. Mr. Condon Has Separate and Independent Knowledge Regarding the
Alleged Non-Performance of the Parties

Mr. Condon argues that he is not a necessary witness regarding the scope of the alleged non-

performance as part of Plaintiff’s futile attempt to narrow the disqualification-related issue to alleged

non-performance by MDP and/or Beer World. However, as made clear by the pleadings and the

record, material disputes remain as to the non-performance of Plaintiff and Plaintiff’s counsel with

respect to the underlying transaction and termination of the Beer Lease, which Mr. Condon alone has

separate and independent knowledge of.

For example, Plaintiff claims that “Pursuant to the Contract of Sale, the Escrow Agent, MDP

was to provide written notice to counsel for the Plaintiff prior to releasing any of the Escrow Fund

to GHA.” (Paxos Aff. ¶ 36) Plaintiff’s breach claims rest upon MDP’s alleged failure to provide

such notice. Mr. Condon’s testimony is materially relevant in this regard as the Contract itself

expressly provides that such notice was to be provided directly to Mr. Condon.

Specifically, Section 16 of the Contract provides that:

16. NOTICES. All notices given in connection with or pursuant to this Contract shall
be in writing and be effective only if sent… to the parties as follows:

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Nowhere in the Contract is there a requirement to notify Ms. Paxos. Accordingly, whether

MDP provided written notice to Plaintiff’s counsel prior to purportedly releasing the escrow funds,

as required by the Contract, is a material issue which Mr. Condon, alone, would have separate and

independent knowledge of. In fact, in opposition to the instant application, Mr. Condon himself

submits that “it is believed that the escrowed funds in MDP’s escrow account were improperly

released from escrow by MDP to GHA.” (Pltf. Memo. p.8) MDP should be entitled to question Mr.

Condon further about his position. Defendants cannot defend this case without deposing him and

then calling him as an adverse trial witness. Accordingly, the case for disqualification could not be

more clear.

Moreover, the record evidence before the Court, which Plaintiff fails to rebut, demonstrates

that Mr. Condon has independent and separate knowledge regarding the alleged wire transfers to

MDP. As attested to by Ms. Paxos, Plaintiff remitted “through counsel” wire transfers to MDP on

June 7, September 9, and November 14, 2022 (Paxos Aff. ¶¶ 28, 29, 33). The wire confirmations for

these three transfers, which Ms. Paxos attached to her affidavit, were sent solely to Mr. Condon.

(Paxos Aff., Exs. D, E, F). Because MDP disputes that these wires constitute full performance by

Plaintiff regarding the establishment of the Escrow Funds,5 Mr. Condon’s testimony would be

5
As MDP has previously argued in this litigation, pursuant to Paragraph 3 of the Contract, Plaintiff
was obligated to make two deposits of $250,000.00 each (the Initial and Additional Deposit),
totaling $500,000.00 (“Deposit”). Complaint Ex. A at §3. The Closing Statement directed that the
(footnote continued)

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necessary to the material dispute regarding whether Plaintiff remitted any other wires to MDP and

whether Plaintiff satisfactorily performed under the Contract.

Further, as MDP’s moving papers demonstrated, a material factual dispute exists whether

Plaintiff, by way of its attorneys, caused the Purchase Price (as defined in the Contract) and proceeds

of the sale to be disbursed as reflected in the Closing Statement, rather than delivering $578,910.00

of the Contract Purchase Price to MDP or otherwise failed to make arrangements for the creation or

funding of the Escrow Fund with MDP. (MDP Memo. p.6; Gordon Aff. ¶9; DeVoesick Aff. ¶17). As

attested to by Mr. DeVoesick, Mr. Condon was part of an agreement that was communicated

regarding this material dispute. (DeVoesick Aff. ¶21) In this regard, Plaintiff’s attempt to distinguish

Falk v. Gallo 73 A.D.3d 685, 686 (2d Dept. 2010) falls short. Plaintiff suggests that Falk does not

apply here because there is a written agreement in place (i.e. the Contract) for which Mr. Condon’s

testimony is not needed. Plaintiff fails to consider the oral agreement described above. Mr. Condon –

who was present during the conversations regarding the terms of this agreement – will be a

necessary witness regarding material issues pertaining to this oral agreement.

C. Mr. Condon Has Separate and Independent Knowledge Regarding the
Contract

While Mr. Condon goes to great lengths to argue that he was not retained as counsel in the

underlying transaction, his own client refutes that. Attached is an email correspondence from

Plaintiff prior to drafting of the Contract wherein he expressly states that “My attorneys are copied

on this email their names are Brian Condon and Lena Paxos….” (Reply Aff., Ex. T) Further, as

Deposit be included in the “Total Balance Due Seller at Closing.” The “Total Balance Due Seller at
Closing” in the amount of $5,331,029.32 expressly included this $500,000.00 Deposit held by MDP,
then subtracted the “Total Expenses of Seller” in the amount of $2,834,730.07 to arrive at “Total
Seller Proceeds of $2,996,399.25.” (Gordon Aff. at Ex. B) (NYSCEF Doc. No. 48) The Deposit was
separate and apart from the Escrow Fund. (Reply MOL in Support of Joint Motion to Dismiss,
annexed to MDP’s moving papers as Exhibit L) (NYSCEF Doc. No. 77)

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the email attached as Exhibit U confirms, Mr. Condon in fact held himself out as Plaintiff’s counsel

in the underlying transaction and during negotiations of the Contract. (Reply Aff., Ex. U)

Accordingly, and in light of this evidence, which is being proffered to refute Plaintiff’s

misrepresentations in opposition, and in light of the other evidence adduced in support of the instant

motion, the Court should give short shrift to Mr. Condon’s remaining contention that he does not

possess any separate, different or independent knowledge relating to the Contract, which MDP

submits is flatly contradicted by the record evidence, including the Contract itself, as demonstrated

above and in MDP’s moving papers.6 (See e.g. MDP Memo p.6.; DeVoesick Aff. ¶ 8)

D. Mr. Condon’s Testimony Will Be Adverse and Prejudicial to Plaintiff

As demonstrated by MDP in its moving papers, and more fully discussed herein, Mr.

Condon’s testimony may be adverse and prejudicial to Plaintiff on several material issues. Certainly,

if the information elicited from Mr. Condon results in a determination that the Beer Lease was not

terminated, Plaintiff’s entire case would fail. Further, his independent knowledge about the

underlying transaction and the parties’ non-performance may demonstrate that, but-for Plaintiff or

Plaintiff’s attorneys own conduct, Plaintiff would not have been damaged. Mr. Condon’s conclusory

statements that MDP has not demonstrated his testimony would be prejudicial are factually and

legally insufficient to overcome MDP’s showing that his testimony may be adverse and prejudicial

to Plaintiff.

6
This Court should not be persuaded by Plaintiff’s misguided statement that MDP has “gone as far
as misrepresenting the words and assertions in Ms. Paxos’ affidavit” by dint of MDP’s
representation that Ms. Paxos’ affidavit shows that both Ms. Paxos and Mr. Condon were intimately
involved in the underlying transaction. (Pltf. Memo. p. 14) To be clear, MDP did not quote from Ms.
Paxos’ affidavit in making this statement and Plaintiff’s attempt to mischaracterize the undersigned’s
choice of words is nothing more than a red-herring and blatant attempt to distract this Court from the
real issues set forth in this instant application.

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II. MS. PAXOS IS A NECESSARY WITNESS

A. Ms. Paxos has Separate and Independent Knowledge of Material Issues

Plaintiff argues that MDP’s application to disqualify Ms. Paxos is moot because she does not

represent Plaintiff in this transaction. In that regard, Ms. Paxos seemingly does not legitimately

dispute that she is a necessary witness. Ms. Paxos’ sole conclusory representation to this Court that

there is “no basis, at this point in the litigation, nor any evidence proffered by Defendants that my

testimony would be necessary at trial” (2d Paxos Aff. ¶10) is disproved by the record evidence

before the Court, including her own contradictory attestations that she, among other things,

negotiated and communicated with MDP with respect to the underlying Contract.

As this Court has already determined pertinent terms of the Contract to be ambiguous (Order;

Spiegel Aff. Ex. M), Ms. Paxos’ testimony will certainly be relevant to adjudicating its

interpretation. See Spielberg, 134 A.D.3d at 1015. Indeed, the precise language that the Court found

to be ambiguous was “[c]arefully crafted” by Ms. Paxos. (Paxos Aff. ¶14) Plaintiff’s opposition

simply disregards the Court’s Order on this issue and MDP’s clear showing that the terms of the

Contract are materially in dispute, for which Ms. Paxos’ testimony will be necessary and potentially

prejudicial to Plaintiff.

B. Ms. Paxos Should be Disqualified

Despite Plaintiff’s representation to the Court that Ms. Paxos is not counsel of record, Ms.

Paxos nevertheless avers that “there is no basis for any motions to disqualify [her] from the instant

proceedings” (2d Paxos Aff. ¶ 20) MDP submits that the record evidence before the Court- which

Plaintiff does not legitimately contest – warrants an instruction from the Court that Ms. Paxos be

disqualified from representing Plaintiff in this matter.

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Of further concern, there are several inconsistencies in the record from which Ms. Paxos’

representation of Plaintiff in this action could reasonably be inferred. The following issues are meant

to be illustrative, but are in no way exhaustive:

A. In the Complaint filed by Plaintiff (NYSCEF Doc. No. 1), Ms. Paxos’ email is the only email
indicated in the signature block for counsel.

B. On the Stipulation Extending Defendant GHA’s Time to Respond to the Complaint
(NYSCEF Doc. No. 10), Ms. Paxos’ email again is the only email indicated in the signature
block for counsel.

C. In a letter dated June 8, 2023, Mr. Condon represents to the Court that: “We represent the
Plaintiff, in connection with the above referenced matter, and it is in that capacity that we
write.” (NYSCEF Doc. No. 35) (emphasis added) As Mr. Condon and Ms. Paxos are the
only two attorneys of the firm, there can be no other way to interpret Mr. Condon’s
colloquial “we” as referring to anything other than both himself and Ms. Paxos as
representatives of Plaintiff in the current action.

D. Plaintiff previously represented to other parties, including MDP, that his attorneys are both
Mr. Condon and Ms. Paxos. (Reply Aff., Ex. T)

Based on the foregoing, and the overwhelming evidence already before the Court, MDP submits

that disqualification of Ms. Paxos is warranted.

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III. CONDON PAXOS PLLC MUST BE DISQUALIFIED

MDP submits that it has met its burden of showing that Mr. Condon and Ms. Paxos are

necessary witnesses in this action and Plaintiff’s opposition fails to overcome that showing. Given

that Mr. Condon and Ms. Paxos are the only two attorneys of their firm, it logically follows that their

firm must also be disqualified.7 Plaintiff’s opposition fails to even address the Second Department’s

holding in Gould v. Decolator, 131 A.D.3d 448, 449 (2d Dept. 2015), cited by MDP, under which

disqualification of Plaintiff’s attorneys and their law firm is warranted because as demonstrated Mr.

Condon and Ms. Paxos each have separate, independent and personal knowledge of material facts

and are likely to be material witnesses. Id. at 449. Here, as in Gould, disqualification of the firm is

warranted where the only members of the firm are disqualified.

Further, Plaintiff’s argument in opposition that there is no evidence that Plaintiff’s firm has a

conflict of interest is flatly rebutted by the record. Indeed, Plaintiff acknowledges that the Court, in

deciding a motion to disqualify, must consider “avoiding even the appearance of impropriety” (Pltf.

Memo. p.10, citing Jamacia Pub. Serv. Co. Ltd. v. AIU Ins. Co., 92 N.Y.2d 631, 638 (1998)). And as

the Second Department has made clear, "[d]oubts as to the existence of a conflict of interest must be

resolved in favor of disqualification." Heelan v. Lockwood, 143 A.D.2d 881, 883 (2d Dept. 1988)

For the reasons set forth in MDP’s moving papers and further discussed herein, Plaintiff cannot

reasonably dispute that there is a blatant appearance of impropriety here and that a conflict of

interest is readily apparent.

7
Plaintiff’s argument that Condon Paxos PLLC should not be disqualified is illusory. The only
attorney at the firm who could potentially represent Plaintiff is Mr. Condon. Thus, upon MDP’s clear
showing that disqualification of Mr. Condon is warranted, disqualification of the firm is also
necessary.

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Indeed, very real conflicts exist with having Mr. Condon and his firm represent Plaintiff in

this matter. Of concern, Ms. Paxos – whose testimony is both necessary to the litigation and

potentially prejudicial to Plaintiff – has apparently been given unfettered access to Plaintiff’s files.

Indeed, as Ms. Paxos attests in her affidavit, she is “a member of CONDON PAXOS PLLC” and is

“fully familiar with the facts and circumstances surrounding this matter based upon a review of the

file maintained by this office….” (Paxos Aff. ¶1) Given that Ms. Paxos is a necessary fact witness

with potentially adverse interests to Plaintiff, Mr. Condon should have implemented protections and

conflict barriers to prevent Ms. Paxos’ access to Plaintiff’s files. This was clearly not done, and Ms.

Paxos’ unlimited access to Plaintiff’s files creates a conflict of interest warranting disqualification of

the firm.

Moreover, MDP may be called upon to assert a third-party action against Ms. Paxos, Mr.

Condon and their firm for contribution/indemnification, based on the record evidence that but-for

their wrongful conduct with respect to the underlying transaction and termination of the Beer Lease,

Plaintiff would not have incurred damages. Certainly, whether Plaintiff’s attorneys’ conduct caused

or contributed to the damages alleged by Plaintiff presents a conflict of interest that warrants

disqualification. Greene v. Greene, 47 N.Y.2d 447, 451-52 (1979)

As a final matter, under Rule 3.7 (b) (1) of the Rules of Professional Conduct (22 NYCRR

1200.0), "[a] lawyer may not act as [an] advocate before a tribunal in a matter if . . . another lawyer

in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of

the client, and it is apparent that the testimony may be prejudicial to the client."8 Given the ample

weight of evidence that Ms. Paxos will be a necessary witness whose testimony may be prejudicial

8
The Court should consider this argument which was not explicitly made in Defendants’ moving
papers. Eujoy Realty Corp. v. Van Wagner Communications, LLC, 22 N.Y.3d 413 (2013).

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FILED: ROCKLAND COUNTY CLERK 01/26/2024 03:46 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/26/2024

to Plaintiff, the Court should disqualify Mr. Condon and the firm on that basis alone. NY Kids Club

125 5th Ave., LLC v. Three Kings, LLC, 133 A.D.3d 580, 581 (2d Dept. 2015). Because of the

particular facts and circumstances presented in this matter, the disqualification of Ms. Paxos gives

rise to an irrefutable presumption of imputed disqualification of Mr. Condon and their firm.

Cardinale v. Golinello, 43 N.Y.2d 288, 295 (1977)

CONCLUSION

For the foregoing reasons, and those set forth in the MDP’s moving papers, it is respectfully

submitted that Ms. Paxos and Mr. Condon, and their firm, Condon Paxos PLLC, should be

disqualified as counsel for the plaintiff, and such other and further relief as is just and proper should

be granted.

Dated: January 26, 2024
New York, New York

LEWIS BRISBOIS BISGAARD & SMITH LLP

By: /s/ Stephen G. Rickershauser, Esq.
Jeffrey Y. Spiegel, Esq.
Stephen G. Rickershauser, Esq.
Attorneys for Defendant Morgenstern
DeVoesick PLLC
77 Water Street, Suite 2100
New York, New York 10005
212-232-1300

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FILED: ROCKLAND COUNTY CLERK 01/26/2024 03:46 PM INDEX NO. 030709/2023
NYSCEF DOC. NO. 94 RECEIVED NYSCEF: 01/26/2024

Certificate of Compliance

Pursuant to the Uniform Civil Rules for the Supreme and County Courts, I hereby certify that

the number of words in the foregoing document, according to the word count on the word processing

program utilized, inclusive of point headings and footnotes, and exclusive of the caption, tables of

contents and tables of authorities, signature block and this certificate of compliance is 3,486.

Dated: January 24, 2024
New York, New York

By: /s/ Stephen G. Rickershauser
Stephen G. Rickershauser, Esq.

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Case Info

Judge

Sherri L Eisenpress Track Judge’s New Case

Case No.

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Document Filed Date

January 26, 2024

Case Filing Date

February 10, 2023

County

Parties

CONDON, BRIAN KEITH Attorney for the Plaintiff
CRAZY BEER WORLD INC Defendant
CRAZY BEER WORLD, INC. Defendant
GRAY, JUSTIN WILLIAM Attorney for the Defendant
GREENPORT HUDSON ASSOCIATES LLC Defendant
GREENPORT/HUDSON ASSOCIATES LLC Defendant
KPL GREEN LLC Plaintiff
MORGENSTERN DeVOESICK PLLC Defendant
MORGENSTERN DeVOESICK PLLC, as Escrow Agent Defendant
OSTRANDER, FRANCIS MICHAEL Attorney for the Defendant
RICKERSHAUSER, STEPHEN G. Attorney for the Defendant
ROSENBAUM, WARREN B Attorney for the Defendant
SPIEGEL, JEFFREY YEHUDA ARIA Attorney for the Defendant
LENA PAXOS Attorney
Jeffrey DeVoesick Attorney
ALBERT HRDLICKA Attorney

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Motion-Secondary: Kpl Green Llc v. Greenport Hudson Associates Llc, Morgenstern Devoesick Pllc, Crazy Beer World Inc

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