PEREZ v. John P. DeMaio, nonparty-respondent. (2025)

DECISION & ORDER

In an action to recover damages for personal injuries and wrongful death, nonparties Kenneth J. Gorman and Wade T. Morris appeal from an order of the Supreme Court, Queens County (Kevin J. Kerrigan, J.), dated July 1, 2022.  The order denied that branch of the motion of nonparties Kenneth J. Gorman and Wade T. Morris which was to disqualify nonparty John P. DeMaio as the attorney for the plaintiffs and directed a conference on that branch of the motion of nonparties Kenneth J. Gorman and Wade T. Morris which was for a charging lien.

ORDERED that the appeal from so much of the order as directed a conference on that branch of the motion of nonparties Kenneth J. Gorman and Wade T. Morris which was for a charging lien is dismissed;  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to nonparty John P. DeMaio.

So much of the order as directed a conference on that branch of the motion of nonparties Kenneth J. Gorman and Wade T. Morris which was for a charging lien did not dispose of that branch of the motion and did not affect a substantial right and, therefore, is not appealable as of right (see CPLR 5701[a][2][v];  Schaff v. Schaff, 172 A.D.3d 1421, 1422, 102 N.Y.S.3d 630;  Dowd v. Dowd, 74 A.D.3d 1013, 1014, 903 N.Y.S.2d 501;  Sloboda v. Sloboda, 24 A.D.3d 533, 534, 807 N.Y.S.2d 108).  Since leave to appeal from that portion of the order has not been granted, we dismiss the appeal from so much of the order as directed a conference on that branch of the motion of Gorman and Morris which was for a charging lien.

The basis of a motion to disqualify an attorney due to an alleged conflict of interest is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client (see Ellison v. Chartis Claims, Inc., 142 A.D.3d 487, 487, 35 N.Y.S.3d 922;  Ogilvie v. McDonald's Corp., 294 A.D.2d 550, 552, 742 N.Y.S.2d 897).  When the attorney sought to be disqualified has never represented the moving party, that attorney owes no duty to that party.  And, it follows that if there is no duty owed, there can be no duty breached (see Ellison v. Chartis Claims, Inc., 142 A.D.3d at 487–488, 35 N.Y.S.3d 922;  Rowley v. Waterfront Airways, Inc., 113 A.D.2d 926, 927, 493 N.Y.S.2d 828).  Here, it is undisputed that Gorman and Morris were never clients of nonparty John P. DeMaio.  Since Gorman and Morris were neither present nor former clients of DeMaio, they lacked standing to seek his disqualification as the attorney for the plaintiffs in the action (see Ellison v. Chartis Claims, Inc., 142 A.D.3d at 488, 35 N.Y.S.3d 922;  Ogilvie v. McDonald's Corp., 294 A.D.2d at 552, 742 N.Y.S.2d 897).  Accordingly, the Supreme Court properly denied that branch of the motion of Gorman and Morris which was to disqualify DeMaio from representing the plaintiffs.

The remaining contentions of Gorman and Morris need not be reached in light of our determination.

GENOVESI, J.P., CHRISTOPHER, DOWLING and LOVE, JJ., concur.