HALL DICKLER KENT GOLDSTEIN WOOD LLP v. Dennis McCormick, et al., third-party defendants-respondents. (2007)

In an action, inter alia, to recover damages for breach of contract, the defendant third-party plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Barone, J.), entered June 24, 2005, as granted that branch of the third-party defendants' motion which was to vacate an order of the same court entered July 2, 2004, granting her motion for leave to enter a judgment against them upon their default in appearing at discovery conferences, and denied her cross motion to disqualify the firm of Roosevelt & Benowich and Leonard Benowich as attorneys for the third-party defendants.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the third-party defendants' motion which was to vacate their default.   The evidence established that the default entered against the third-party defendants David McCormick, Ann Ritter, David Cook McCormick, Helen Leaver, and David Velderman was a nullity, as they were not properly served with process (see CPLR 5015[a][4] ), and vacatur of the default judgment was required as a matter of law and due process (see Ismailov v. Cohen, 26 A.D.3d 412, 413-414, 809 N.Y.S.2d 199;  Pelaez v. Westchester Med. Ctr., 15 A.D.3d 375, 376, 789 N.Y.S.2d 533).   With regard to the remaining third-party defendants, the Supreme Court providently exercised its discretion in vacating their default (cf. M.S. Hi-Tech v. Thompson, 23 A.D.3d 442, 443, 808 N.Y.S.2d 122;  Tragni v. Tragni, 21 A.D.3d 1084, 1085-1086, 803 N.Y.S.2d 617;  Orwell Bldg. Corp. v. Bessaha, 5 A.D.3d 573, 574-575, 773 N.Y.S.2d 126).

 Since the defendant third-party plaintiff (hereinafter the defendant) was neither a former nor a present client of the law firm of Roosevelt & Benowich, LLP, or of Leonard Benowich, she did not have standing to seek the disqualification of Benowich or his law firm from dual representation of the plaintiff and the third-party defendants (see Singh v. Friedson, 10 A.D.3d 721, 722, 783 N.Y.S.2d 46;  cf. A.F.C. Enters. v. New York City School Constr. Auth., 33 A.D.3d 736, 823 N.Y.S.2d 433;  Ogilvie v. McDonald's Corp., 294 A.D.2d 550, 552, 742 N.Y.S.2d 897).   In any event, the Supreme Court providently exercised its discretion in denying the defendant's cross motion to disqualify counsel.   It is undisputed that the plaintiff and the third-party defendants were fully informed of the potential for a conflict of interest based on the law firm's dual representation and that they consented to the continued representation.   The defendant's conclusory assertions and speculation as to the existence of a conflict of interest were insufficient to meet her burden of demonstrating that the disqualification of counsel was warranted (see Dominguez v. Community Health Plan of Suffolk, 284 A.D.2d 294, 294-295, 725 N.Y.S.2d 377).

The defendant's remaining contentions are either not properly before this court or without merit.