Motion-Secondary: Npl Fund Llc v. 324 East 14th Street Llc, Nejatollah Sassouni, Susan Sassouni, Namdar East Village Holdings Llc, The City Of New York Environmental Control Board, The City Of New York, Criminal Court Of The City Of New York, John Doe #1 Through John Doe #20 the last twenty names being fictitious and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest upon the premises described in the Complaint

On November 06, 2023 a Motion-Secondary was filed involving a dispute between Npl Fund Llc, and 324 East 14Th Street Llc, Criminal Court Of The City Of New York, John Doe #1 Through John Doe #20 The Last Twenty Names Being Fictitious And Unknown To Plaintiff, The Persons Or Parties Intended Being The Tenants, Occupants, Persons Or Corporations, If Any, Having Or Claiming An Interest Upon The Premises Described In The Complaint, Namdar East Village Holdings Llc, Nejatollah Sassouni, Susan Sassouni, The City Of New York, The City Of New York Environmental Control Board, for Real Property - Mortgage Foreclosure - Commercial in the District Court of New York County.

Preview
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
------------------------------------------------------------------------x
NPL FUND LLC,
:
Plaintiff, Index No.: 850622/2023
:
-against-
: Mot. Seq. No. ___
324 EAST 14TH STREET LLC; NEJATOLLAH
SASSOUNI; SUSAN SASSOUNI; NAMDAR EAST :
VILLAGE HOLDINGS LLC; THE CITY OF NEW
YORK ENVIRONMENTAL CONTROL BOARD; THE :
CITY OF NEW YORK; CRIMINAL COURT OF THE
CITY OF NEW YORK and “JOHN DOE #1 through :
JOHN DOE #20”, the last twenty names being fictitious
and unknown to Plaintiff, the persons or parties intended :
being the tenants, occupants, persons or corporations, if
any, having or claiming an interest upon the premises :
described in the Complaint,
:
Defendants.
------------------------------------------------------------------------x

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT NAMDAR EAST VILLAGE
HOLDINGS LLC’S MOTION TO DISQUALIFY GREG A. FRIEDMAN, ESQ. AND
KRISS & FEUERSTEIN LLP AS COUNSEL FOR PLAINTIFF NPL FUND LLC

MEISTER SEELIG & FEIN PLLC
125 Park Avenue, 7th Floor
New York, New York 10017
Tel: (212) 655-3500

Counsel for Defendant Namdar East
Village Holdings LLC

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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

FACTS ............................................................................................................................................ 3

A. Attorney Friedman and K&F Represent Mr. Namdar’s Entity,
337 18 Lender, in the Kings County Action ................................................................. 3

B. On Behalf of NPL, Attorney Friedman and K&F Sue Mr. Namdar’s Entity, Namdar
East, in This Action....................................................................................................... 4

C. Attorney Friedman and K&F Sued Namdar East Without Disclosing the Existence of
a Conflict or Obtaining a Conflict Waiver.................................................................... 5

ARGUMENT .................................................................................................................................. 5

I. LEGAL STANDARD FOR DISQUALIFICATION BASED ON SIMULTANEOUS
REPRESENTATION OF CURRENT CLIENTS .............................................................. 5

II. ATTORNEY FRIEDMAN AND K&F SHOULD BE DISQUALIFIED
FROM REPRESENTING NPL IN THIS ACTION ........................................................... 7

A. Attorney Friedman and K&F’s Simultaneous Representation of NPL in
This Action and 337 18 Lender in The Kings County Action Gives Rise
to a Conflict of Interest that Cannot be Waived ........................................................... 7

B. Even if Attorney Friedman and K&F were Able to Fairly Represent NPL
and 337 18 Lender Simultaneously, Disqualification is Necessary Due to
the Failure to Obtain the Required Consent from their Clients .................................. 10

C. Attorney Friedman and K&F’s Disqualification in This Action Will Result
in Minimal Prejudice to NPL ...................................................................................... 11

III. THE COURT SHOULD TEMPORARILY STAY THIS ACTION UNTIL
NEW, NON-CONFLICTED COUNSEL CAN BE RETAINED BY NPL ..................... 12

CONCLUSION ............................................................................................................................. 12

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TABLE OF AUTHORITIES

Page(s)
Cases

Brown & Williamson v. Chesley,
2002 WL 31940719 (Sup. Ct. N.Y. Cnty. Dec. 18, 2002) .......................................................... 7

Caravousanos v. Kings Cnty. Hosp.,
27 Misc.3d 237 (Sup. Ct. Kings Cnty. 2010) .............................................................................. 8

Cardinale v. Golinello,
43 N.Y.2d 288 (1977) .................................................................................................................. 7

Casita, LP v. Maplewood Equity Partners (Offshore) Ltd.,
2006 WL 399796 (Sup. Ct. N.Y. Cnty. Feb. 22, 2006)
aff’d, 34 A.D.3d 251 (1st Dep’t 2006). ...................................................................................... 12

Chang v. Chang,
190 A.D.2d 311 (1st Dep’t 1993) ................................................................................................ 5

Credit Index, L.L.C. v. Riskwise Int’l L.L.C.,
296 A.D.2d 318 (1st Dep’t 2002) .............................................................................................. 10

Dembitzer v. Chera,
285 A.D.2d 525 (2d Dep’t 2001)................................................................................................. 8

Discotrade Ltd. v. Wyeth-Ayerst Int’l, Inc.,
200 F. Supp. 2d 355 (S.D.N.Y. 2002) ......................................................................................... 9

Dorsainvil v. Parker,
14 Misc.3d 397 (Sup. Ct. Kings Cnty. 2006) .............................................................................. 6

Ferolito v. Vultaggio,
99 A.D.3d 19 (1st Dep’t 2012) .................................................................................................... 5

Greene v. Greene,
47 N.Y.2d 447 (1979) .................................................................................................................. 6

HRH Const. LLC v. Palazzo,
15 Misc.3d 1130(A) (Sup. Ct. N.Y. Cnty. 2007) ...................................................................... 11

In re Strasser,
129 A.D.3d 457 (1st Dep’t 2015) ................................................................................................ 7

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Janczewski v. Janczewski,
169 A.D.3d 795 (2d Dep’t 2019)................................................................................................. 2

Matter of Kelly,
23 N.Y.2d 368 (1968) .................................................................................................................. 7

Moray v. UFS Indus., Inc.,
156 A.D.3d 781 (2d Dep’t 2017)............................................................................................. 7, 9

North Shore Preservation DP, L.P. v. Grenadier Realty Corp.,
2021 WL 2457055 (Sup. Ct. N.Y. Cnty. June 14, 2021) .......................................................... 11

Phoenix Elec. Contracting Corp. v. New York Tel. Co.,
155 Misc.2d 250 (Sup. Ct. Kings Cnty. 1992) ............................................................................ 9

Sanyang v. Davis,
205 A.D.3d 493 (1st Dep’t 2022) .............................................................................................. 11

Scopin v. Goolsby,
88 A.D.3d 782 (2d Dep’t 2011)................................................................................................... 5

Tartakoff v. New York State Educ. Dep’t,
130 A.D.3d 1331 (3d Dep’t 2015)........................................................................................... 7, 8

Tavarez v. Hill,
23 Misc.3d 377 (Sup. Ct. Bronx Cnty. 2009) .............................................................................. 6

USA Recycling, Inc. v. Baldwin Endico Realty Assocs., Inc.,
147 A.D.3d 697 (1st Dep’t 2017) ............................................................................................ 7, 9

Zedeck v. Derfner Mgmt. Inc.,
98 A.D.3d 925 (1st Dep’t 2012) ............................................................................................ 8, 11

Rules

Rule 1.7 of the New York Rules of Professional Conduct ................................................... 2, 6, 10

Regulations

22 N.Y.C.R.R. 1200.0 ................................................................................................................. 1, 6

iii

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Defendant Namdar East Village Holdings LLC (“Namdar East”) respectfully submits this

memorandum of law in support of its motion to (i) disqualify Greg A. Friedman (“Attorney

Friedman”) and his law firm, Kriss & Feuerstein LLP (“K&F”), from further appearing on behalf

of and otherwise representing plaintiff NPL Fund LLC (“NPL”) in the above-captioned action

(“This Action”), (ii) temporarily stay all proceedings in This Action to allow NPL to seek and

obtain new counsel, and (iii) grant such other relief the Court deems just and proper. 1

PRELIMINARY STATEMENT

The Court should disqualify Attorney Friedman and K&F because in representing NPL

against Namdar East in This Action, Attorney Friedman and K&F are suing their own client. Since

at least May 2022, Attorney Friedman and K&F have served as counsel to 337 18 Lender LLC

(“337 18 Lender”) in a commercial mortgage foreclosure action that currently remains pending in

Supreme Court, Kings County, Index No. 512734/2022 (the “Kings County Action”). Igal Namdar

(“Mr. Namdar”) is the sole manager and principal 337 18 Lender and, as explained herein, Mr.

Namdar is also the sole manager and principal of Namdar East. While Attorney Friedman and

K&F’s representation of Mr. Namdar’s entity, 337 18 Lender, continues in the Kings County

Action, they are now suing Mr. Namdar’s other entity, Namdar East, in This Action. In so doing,

Attorney Friedman and K&F have violated the New York Rules of Professional Conduct, as they

could not have reasonably believed (as required by the Rules) that they could “provide competent

and diligent representation to each affected client,” in this case 337 18 Lender (in the Kings County

Action) and NPL (in This Action). See 22 N.Y.C.R.R. 1200.0, Rule 1.7(b)(1).

1
On January 30, 2024, Namdar East filed a motion to disqualify Attorney Friedman and K&F
from representing NPL in a separate pending action in which Namdar East is named as a defendant,
captioned NPL Fund LLC v. 75 Second Avenue LLC et al., Index No. 850621/2023 (Supreme
Court, New York County).
1

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As discussed below, Rule 1.7 of the New York Rules of Professional Conduct and New

York case law generally prohibit attorneys and law firms from simultaneously representing

multiple clients with adverse positions to one another, as is the case here. As a threshold matter,

by virtue of their extensive representation of Mr. Namdar and his entity, 337 18 Lender, in the

Kings County Action — indeed, Mr. Namdar has worked closely with K&F in connection with

that action, including in submitting multiple substantial affidavits by Mr. Namdar — Attorney

Friedman and K&F would have an unfair advantage over Namdar East in This Action.

Furthermore, in order to represent NPL in This Action, K&F will eventually have to obtain

discovery from — and depose and cross-examine — Mr. Namdar in his capacity as Namdar East’s

manager. Rule 1.7(a) prohibits Attorney Friedman and K&F’s continued representation of NPL

under such a blatant conflict of interest scenario.

Even if Attorney Friedman and K&F reasonably believed (which they could not) that they

could competently and diligently simultaneously represent both NPL and 337 18 Lender, Attorney

Friedman and K&F were required to explain the conflict to Mr. Namdar and obtain his informed,

written consent. However, no such consent was ever obtained, and as a result Attorney Friedman

and K&F must be disqualified. In short, Attorney Friedman and K&F’s representation of NPL in

This Action warrants disqualification, especially since New York courts have made clear that

“doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order

to avoid even the appearance of impropriety.” Janczewski v. Janczewski, 169 A.D.3d 795, 797

(2d Dep’t 2019).

Accordingly, the Court should grant Namdar East’s motion to disqualify. If the motion is

granted, a temporary stay should be put in place to enable NPL to appoint new counsel to represent

it.

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FACTS 2

A. Attorney Friedman and K&F Represent Mr. Namdar’s Entity, 337 18 Lender, in the
Kings County Action

Mr. Namdar is the sole manager and principal of 337 18 Lender. Namdar Aff., ¶ 3. On

May 3, 2022, 337 18 Lender commenced a commercial mortgage foreclosure action against

various defendants. Namdar Aff., Ex. A. 337 18 Lender’s complaint in the Kings County Action

is verified by Mr. Namdar in his capacity as 337 18 Lender’s manager. Namdar Aff., Ex. A at p.

25 (verification page). In the Kings County Action, 337 18 Lender seeks to foreclose on certain

defaulted commercial mortgage loans totaling a principal amount of $2,450,000.00 and to obtain

a judgment of foreclosure and sale. Namdar Aff., Ex. A. The commercial mortgage loans at issue

are secured by certain real property located at 337 18th Street, Brooklyn, New York 11215.

Namdar Aff., Ex. A, ¶ 3.

K&F has represented 337 18 Lender in the Kings County Action from its inception.

Namdar Aff., ¶ 7 & Ex. A. Specifically, 337 18 Lender is represented by Attorney Friedman and

another K&F attorney named Michael J. Bonneville. Id. As part of the Kings County Action, 337

18 Lender has filed at least two substantial affidavits (one 16-pages long and another 24-pages

long) by Mr. Namdar in his capacity as manager of 337 18 Lender. Namdar Aff., Ex. B and C. In

addition, Mr. Namdar submitted a third affidavit dated November 29, 2023 and titled “Testimony

Before Referee” in support of 337 18 Lender’s computation of amounts owed on the mortgage

loans, which total over $3.5 million. Namdar Aff., Ex. D.

The docket of the Kings County Action reflects that the action has been active, with nearly

190 documents electronically filed on the NYSCEF system to date. Koh Affirm., Ex. A (copy of

2
The Affidavit of Igal Namdar dated January 22, 2024 is cited herein as “Namdar Aff.” and the
Affirmation of Howard Koh dated January 30, 2024 is cited herein as “Koh Affirm.”
3

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docket sheet). As of the date of this writing, the Kings County Action remains pending. Koh

Affirm., ¶ 4.

B. On Behalf of NPL, Attorney Friedman and K&F Sue Mr. Namdar’s Entity, Namdar
East, in This Action

Mr. Namdar is the sole manager and principal of Namdar East, one of the named defendants

in This Action. Namdar Aff., ¶ 1. On November 6, 2023, NPL commenced This Action by filing

a summons and verified complaint. Koh Affirm., Ex. B. In This Action, NPL seeks to foreclose

on a certain defaulted commercial mortgage loan in the principal amount of $1,500,000.00 and to

obtain a judgment of foreclosure and sale. Id. The commercial mortgage loan at issue is secured

by certain real property located at 324 East 14th Street, New York, New York 10003 (the

“Property”). Koh Affirm., Ex. B, ¶ 1. The defendants in this action include 324 East 14th Street

LLC (the borrower under the mortgage loan at issue), and individual guarantors named Nejatollah

Sassouni and Susan Sassouni. Koh Affirm., Ex. B, ¶¶ 3-5.

NPL alleges in its complaint that Namdar East is a necessary party to This Action because

Namdar East holds a subordinate mortgage secured by the Property. Koh Affirm., Ex. B at ¶ 6.

NPL seeks “to bar [Namdar East] from enforcing, and extinguishing, any right, title or interest it

may have in the Property or some part thereof.” Id. Thus, NPL has taken a legal position that is

directly adverse to the interests of Mr. Namdar and Namdar East.

NPL is represented in This Action by K&F, specifically by Attorney Friedman. This

Action is in its early stages: to date, other than NPL’s filing of the complaint, only four of the

seven named defendants have filed an answer. Koh Affirm., ¶ 7. To Namdar East’s knowledge,

no discovery requests have yet to be served by any party, nor have any depositions been noticed.

Koh Affirm., ¶ 8; Namdar Aff., ¶ 24.

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C. Attorney Friedman and K&F Sued Namdar East Without Disclosing the Existence of
a Conflict or Obtaining a Conflict Waiver

At no time prior to commencing This Action did Attorney Friedman and K&F inform Mr.

Namdar, the sole manager and principal of 337 18 Lender (K&F’s client in the Kings County

Action) that K&F intended to represent NPL in suing Namdar East, which (like 337 18 Lender) is

owned and controlled by Mr. Namdar. Namdar Aff., ¶ 25. Furthermore, at no time did either

Attorney Friedman or anyone else at K&F discuss with Mr. Namdar a waiver of any existing or

potential conflicts in these matters, or seek Mr. Namdar’s written informed consent to waive any

existing or potential conflicts. Id., ¶ 26. Mr. Namdar first learned of Attorney Friedman and

K&F’s representation of NPL only after This Action was already commenced. Id., ¶ 27.

ARGUMENT

I. LEGAL STANDARD FOR DISQUALIFICATION BASED ON SIMULTANEOUS
REPRESENTATION OF CURRENT CLIENTS

“Disqualification is a matter that rests within the sound discretion of the trial court. When

considering a motion to disqualify counsel, a trial court must consider the totality of the

circumstances and carefully balance the right of a party to be represented by counsel of his or her

choosing against the other party’s right to be free from possible prejudice due to the questioned

representation.” Ferolito v. Vultaggio, 99 A.D.3d 19, 27 (1st Dep’t 2012) (citations omitted).

While a client’s right to select counsel is a factor to be considered, it does not “supersede a clear

showing that disqualification is warranted.” Scopin v. Goolsby, 88 A.D.3d 782, 784 (2d Dep’t

2011). “Courts can never abdicate their responsibility to supervise and regulate the ethical conduct

of attorneys appearing before them, especially where the rights of litigants are affected.” Chang

v. Chang, 190 A.D.2d 311, 318 (1st Dep’t 1993).

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Rule 1.7 of the New York Rules of Professional Conduct (codified at 22 N.Y.C.R.R.

1200.0) governs the issue of simultaneous representation by a law firm or attorney of multiple

current clients with adverse interests. Rule 1.7(a)(1) provides that “a lawyer shall not represent a

client if a reasonable lawyer would conclude that” the representation “will involve the lawyer in

representing differing interests.” In turn, Rule 1.7(b) enumerates certain limited circumstances in

which attorneys are permitted to undertake “a concurrent conflict of interest” and makes clear that

the threshold question is whether the lawyer “reasonably believes” that the attorney can provide

“competent and diligent representation to each affected client.” When considering the

representation of multiple clients, an attorney “must first determine whether a disinterested lawyer

could competently represent the respective interest of all potential clients. If the answer is yes,

then after full disclosure of the implications of simultaneous representations, the parties may give

consent to the joint representation and waive the potential conflict of interest. If the answer is no,

then the conflict may not be waived and joint representation would be unethical.” Dorsainvil v.

Parker, 14 Misc. 3d 397, 401 (Sup. Ct. Kings Cnty. 2006) (holding that a law firm agreeing to

represent multiple clients while knowing a potential conflict existed merited disqualification).

Even when an attorney discloses a conflict to the affected clients, “[t]he Court of Appeals

has held that disclosure alone does not resolve the conflict issues created by dual

representation. . . . 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.” Tavarez v. Hill, 23 Misc. 3d 377, 382 (Sup. Ct. Bronx Cnty. 2009) (citing

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

Furthermore, it is not enough that an attorney avoid an actual conflict of interest among

current clients; disqualification is proper based merely on the appearance of such a conflict. “It

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is well settled that an attorney ‘must avoid not only the fact, but even the appearance, of

representing conflicting interests.’” In re Strasser, 129 A.D.3d 457, 458 (1st Dep’t 2015) (quoting

Cardinale v. Golinello, 43 N.Y.2d 288 (1977)). “[W]ith rare and conditional exceptions, the

lawyer may not place himself in a position where a conflicting interest may, even inadvertently,

affect, or give the appearance of affecting, the obligations of the professional relationship.” Id.

(quoting Matter of Kelly, 23 N.Y.2d 368 (1968)); see also Moray v. UFS Indus., Inc., 156 A.D.3d

781, 784 (2d Dep’t 2017) (“Even when an actual conflict of interest may not exist, disqualification

may be warranted based on a mere appearance of impropriety”).

Critically, “[t]he question whether there is a conflict of interest must be resolved in favor

of disqualification.” USA Recycling, Inc. v. Baldwin Endico Realty Assocs., Inc., 147 A.D.3d 697,

698 (1st Dep’t 2017). Even “doubts as to the existence of a conflict of interest must be resolved

in favor of disqualification.” In re Strasser, 129 A.D.3d at 458 (citation omitted). That is

particularly so “[w]hen the representation is simultaneous,” as “the burden shifts to the attorney to

demonstrate that no actual or apparent conflict in loyalties exists.” Tartakoff v. New York State

Educ. Dep’t, 130 A.D.3d 1331, 1333 (3d Dep’t 2015); see also Brown & Williamson v. Chesley,

2002 WL 31940719, at *3 (Sup. Ct. N.Y. Cnty. Dec. 18, 2002) (noting that “the conflict analysis

standards are the stricter ones applicable when a current client, as distinguished from a former

client, seeks disqualification”).

II. ATTORNEY FRIEDMAN AND K&F SHOULD BE DISQUALIFIED FROM
REPRESENTING NPL IN THIS ACTION

A. Attorney Friedman and K&F’s Simultaneous Representation of NPL in This Action
and 337 18 Lender in The Kings County Action Gives Rise to a Conflict of Interest
that Cannot be Waived

The impropriety of Attorney Friedman and K&F’s simultaneous representation of NPL in

This Action and 337 18 Lender in the Kings County Action is obvious on its face. This Action

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and the Kings County Action are remarkably similar, as both are commercial mortgage foreclosure

actions involving defaulted multimillion-dollar mortgage loans. Mr. Namdar is the sole manager

and principal of both Namdar East (defendant in This Action) and 337 18 Lender (plaintiff in the

Kings County Action). Namdar Aff., ¶ 3. Thus, Mr. Namdar is the ultimate (and, in fact, sole)

stakeholder for both Namdar East and 337 18 Lender. By representing NPL in This Action,

Attorney Friedman and K&F are taking a directly adverse position to Mr. Namdar and his entity,

Namdar East. Such direct conflict between current clients requires disqualification. See Zedeck

v. Derfner Mgmt. Inc., 98 A.D.3d 925, 925 (1st Dep’t 2012) (law firm disqualified based on

conflicting interests of individual owners of entities at issue); Dembitzer v. Chera, 285 A.D.2d

525, 526 (2d Dep’t 2001) (plaintiffs’ attorneys “should be disqualified from further representation

of the plaintiffs in this case against their own client”); Caravousanos v. Kings Cnty. Hosp., 27

Misc. 3d 237, 242 (Sup. Ct. Kings Cnty. 2010) (holding that “simultaneous representation of AWL

and Nova in an adverse capacity was a violation of § 1200.7 [Rule 1.7] of the Rules of Professional

Conduct” warranting disqualification of law firm).

In order to represent NPL in This Action, K&F will eventually have to obtain discovery

from Mr. Namdar. Disqualification is necessary on this basis alone. See Tartakoff, 130 A.D.3d at

1333 (disqualification warranted where attorney “would have had to effectively cross-examine”

attorney’s own client in separate litigation, where such representation “potentially gave him access

to information not otherwise available for use on cross-examination,” and where attorney “would

be attempting to diminish” client’s credibility in one action “whereas an opposite result would be

pursued” in the other litigation).

There can also be no dispute that, by virtue of their extensive representation of 337 18

Lender in the Kings County Action, Attorney Friedman and K&F have gained significant insight

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into Mr. Namdar’s business affairs and the affairs of the entities he manages, litigation preferences,

and strategic thinking, including confidential and sensitive business information. Namdar Aff.,

¶¶ 7-16. Such access should not now be used by Attorney Friedman and K&F against Mr. Namdar

and Namdar East in This Action. USA Recycling, Inc., 147 A.D.3d at 697 (disqualification proper

where paralegal “gained considerable knowledge of defendant’s affairs”). In this case, “[i]t is not

necessary for a party seeking disqualification to show that confidential information necessarily

will be disclosed in the course of the litigation; rather, a reasonable probability of disclosure will

suffice.” Moray, 156 A.D.3d at 784 (disqualification warranted where attorney’s “employment by

the plaintiffs’ attorney and involvement in litigation against [defendants] gives the appearance of

representing conflicting interests”).

Moreover, Attorney Friedman and K&F’s representation of 337 18 Lender in the Kings

County Action would undoubtedly give their other client, NPL, an unfair advantage in This Action.

This unfair advantage, too, warrants disqualification. Phoenix Elec. Contracting Corp. v. New

York Tel. Co., 155 Misc. 2d 250, 252-53 (Sup. Ct. Kings Cnty. 1992) (granting motion to disqualify

based on risk of law firm being in position to obtain “incriminating evidence against defendant

Charles which would create an uneven advantage in favor of plaintiff and impinge upon the right

of defendant to defend this action”).

In light of Mr. Namdar’s primary role in both 337 18 Lender and Namdar East, it is

irrelevant that 337 18 Lender and Namdar East are separate entities involved in lawsuits

concerning different properties. Discotrade Ltd. v. Wyeth-Ayerst Int’l, Inc., 200 F. Supp. 2d 355,

358 (S.D.N.Y. 2002) (“corporate relationship” between entities sufficiently “close as to deem them

a single entity for conflict of interest purposes”). Indeed, it is standard practice for the owner of

interests in multiple properties to hold those interest in multiple “single purpose entities,” so as to

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ring-fence each property and prevent a liability at one property from exposing all of the other

properties to that same liability. Namdar Aff., ¶ 17. Nor does it matter, for conflict purposes, that

Mr. Namdar himself is not a named party in the Kings County Action and This Action. Credit

Index, L.L.C. v. Riskwise Int’l L.L.C., 296 A.D.2d 318, 318 (1st Dep’t 2002) (law firm properly

disqualified, based on relationship with majority shareholder, in action in which “the shareholder

is personally involved in the litigation even though he is not a named party”).

B. Even if Attorney Friedman and K&F were Able to Fairly Represent NPL and 337 18
Lender Simultaneously, Disqualification is Necessary Due to the Failure to Obtain the
Required Consent from their Clients

Even if Attorney Friedman and K&F’s conflict was waivable, Rule 1.7(b)(4) of the New

York Rules of Conduct prevents attorneys from undertaking representations that involve differing

interests unless the attorneys first obtain informed consent from each of their affected clients. As

Comment 6 to the Rules makes clear (emphasis added):

The duty to avoid the representation of differing interest prohibits,
among other things, undertaking representation adverse to a current
client without that client’s informed consent. For example, absent
consent, a lawyer may not advocate in one matter against
another client that the lawyer represents in some other matter,
even when the matters are wholly unrelated. The client as to
whom the representation is adverse is likely to feel betrayed and the
resulting damage to the client-lawyer relationship is likely to impair
the lawyer’s ability to represent the client effectively. In addition,
the client on whose behalf the adverse representation is undertaken
may reasonably fear that the lawyer will pursue that client’s case
less effectively out of deference to the other client, that is, that the
lawyer’s exercise of professional judgment on behalf of that client
will be adversely affected by the lawyer’s interest in retaining the
current client.

It is indisputable that Attorney Friedman and K&F failed to disclose their representation

of NPL to Mr. Namdar prior to the commencement of This Action, and that they likewise have not

asked Mr. Namdar or Namdar East to sign a conflict waiver. Namdar Aff., ¶¶ 25-26. Attorney

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Friedman and K&F’s failure to obtain informed consent in writing is dispositive and requires

disqualification. Sanyang v. Davis, 205 A.D.3d 493, 494 (1st Dep’t 2022) (affirming

disqualification order where plaintiffs’ counsel “failed to obtain written consent from both

plaintiffs prior to his dual representation of them, as is required”) (citing Rule 1.7(b)(4) of the

Rules of Professional Conduct); Zedeck, 98 A.D.3d at 925-26 (law firm disqualified where there

was “no evidence in the record” that affected individuals and interest holders “gave their ‘informed

consent, confirmed in writing’ to concurrent representation”) (quoting Rule 1.7(b)(4)); HRH

Const. LLC v. Palazzo, 15 Misc. 3d 1130(A), at *3 (Sup. Ct. N.Y. Cnty. 2007) (“although multiple

representation may be permissible where, after full disclosure of the risks of such representation,

the attorney has obtained the consent of both parties, here there is no indication that disclosure was

made and consent obtained,” and as such disqualification was necessary based on dual

representation).

C. Attorney Friedman and K&F’s Disqualification in This Action Will Result in
Minimal Prejudice to NPL

Any prejudice resulting to NPL from the disqualification of Attorney Friedman and K&F

as its counsel will be slight. This Action is at a very early stage, as only four defendants have filed

an answer thus far. Koh Affirm., ¶ 7. To Namdar East’s knowledge, no discovery has been served

by any party, nor have any depositions taken place. Koh Affirm., ¶ 8; Namdar Aff., ¶ 24. It should

pose little difficulty, and entail only a modest amount of time and cost, for new counsel to replace

K&F in This Action. Disqualification at this early stage is appropriate. See, e.g., North Shore

Preservation DP, L.P. v. Grenadier Realty Corp., 2021 WL 2457055, at *3 (Sup. Ct. N.Y. Cnty.

June 14, 2021) (granting motion to disqualify and noting it “will not significantly prejudice”

affected party “as depositions have not yet occurred”).

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III. THE COURT SHOULD TEMPORARILY STAY THIS ACTION UNTIL NEW, NON-
CONFLICTED COUNSEL CAN BE RETAINED BY NPL

In an effort to avoid unnecessary waste and duplication, the Court should temporarily stay

This Action until Plaintiff can appoint new counsel to represent it. See, e.g., Casita, LP v.

Maplewood Equity Partners (Offshore) Ltd., 2006 WL 399796, at *9 (Sup. Ct. N.Y. Cnty. Feb.

22, 2006) (staying proceedings for 30 days after counsel was disqualified so impacted party can

retain new counsel), aff’d, 34 A.D.3d 251 (1st Dep’t 2006).

CONCLUSION

For the foregoing reasons, an order should be entered (i) disqualifying Attorney Friedman

and K&F from representing NPL in This Action, (ii) temporarily staying all proceedings in This

Action to allow NPL to seek and obtain new counsel, and (iii) granting such other relief the Court

deems just and proper.

Dated: New York, New York MEISTER SEELIG & FEIN PLLC
January 30, 2024

By: /s/ Howard S. Koh
Howard S. Koh, Esq.
Amit Shertzer, Esq.
125 Park Avenue, 7th Floor
New York, NY 10017
Tel: (212) 655-3500

Attorneys for Defendant
Namdar East Village Holdings, LLC

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CERTIFICATE OF COMPLIANCE

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 (if any), signature block and

this certificate of compliance is 3,713.

Dated: New York, New York /s/ Howard S. Koh
January 30, 2024 HOWARD S. KOH

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Case Info

Judge

Francis A. Kahn Iii Track Judge’s New Case

Case No.

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Document Filed Date

January 30, 2024

Case Filing Date

November 06, 2023

County

Parties

324 EAST 14TH STREET LLC Defendant
Bell, Glenn D Attorney for the Defendant
CRIMINAL COURT OF THE CITY OF NEW YORK Defendant
FRIEDMAN, GREG ANDREW Attorney for the Plaintiff
GOLDSCHEIN, EYTAN MICHAEL Attorney for the Defendant
GOULD, MICHAEL A Attorney for the Plaintiff
JOHN DOE #1 through JOHN DOE #20 the last twenty names being fictitious and unknown to Plaintiff, the persons or parties intended being the tenants, occupants, persons or corporations, if any, having or claiming an interest upon the premises described in the Complaint Defendant
KOH, HOWARD S Attorney for the Defendant
NAMDAR EAST VILLAGE HOLDINGS LLC Defendant
Nejatollah Sassouni Defendant
NPL FUND LLC Plaintiff
SHERTZER, AMIT Attorney for the Defendant
Susan Sassouni Defendant
THE CITY OF NEW YORK Defendant
THE CITY OF NEW YORK ENVIRONMENTAL CONTROL BOARD Defendant

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