Miguel A. Ramirez Diaz, et al., respondents, v. Edward R. Gomez, et al., appellants. (2026)

Submitted—May 9, 2025

DECISION & ORDER

W/

On January 28, 2021, the plaintiff Miguel A. Ramirez Diaz (hereinafter the plaintiff driver) allegedly was stopped at a red traffic signal when his vehicle was struck in the rear by a vehicle operated by the defendant Edward R. Gomez (hereinafter the defendant driver) and owned by the defendant Canada Dry Bottling Company of New York, L.P. (hereinafter Canada Dry).  In March 2021, the plaintiff driver, along with three passengers who were in his vehicle at the time of the subject accident, the plaintiffs Carlos E. Acosta Abreu, Rigoberto Jerez Vicioso, and Yoselin Veloz Garcia (hereinafter collectively the passengers), commenced this action to recover damages for personal injuries against the defendant driver and Canada Dry. The plaintiff driver and the passengers were jointly represented in this action by nonparty Gambone Law Group, PLLC (hereinafter Gambone).  In an answer, the defendants asserted a counterclaim against the plaintiff driver for common-law indemnification or contribution, alleging that any injuries sustained by the plaintiffs from the subject accident resulted, in whole or in substantial part, from the negligence of the plaintiff driver.

“ ‘The disqualification of an attorney is a matter that rests within the sound discretion of the [trial] court’ ” (Buckham v. 322 Equity, LLC, 229 AD3d 669, 672, quoting Alnoukari v. Nokari, 218 AD3d 527, 528).  “ ‘A party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted’ ” (id., quoting Greenberg v Grace Plaza Nursing & Rehabilitation Ctr., 174 AD3d 510, 510).  “On a motion to disqualify an attorney, ‘[t]he moving party bears the burden of showing that disqualification is warranted’ ” (id., quoting Matter of Blauman–Spindler v. Blauman, 184 AD3d 636, 637).

Contrary to the passengers' contention, the defendants demonstrated that Gambone's representation of both the plaintiff driver and the passengers created a conflict of interest (see Shelby v. Blakes, 129 AD3d 823, 825;  Alcantara v. Mendez, 303 A.D.2d 337, 338;  Pessoni v. Rabkin, 220 A.D.2d 732).  Although the passengers contend that there was no conflict of interest because the plaintiff driver, whose vehicle allegedly was struck in the rear while he was stopped at a red traffic signal, was not at fault in the happening of the accident, the pecuniary interests of the plaintiff driver conflicted with those of the passengers once the defendants asserted the counterclaim against the plaintiff driver (see Shelby v. Blakes, 129 AD3d at 825).  Moreover, under the circumstances of this case, the defendants sufficiently demonstrated that Gambone should be disqualified from continuing to represent any plaintiffs in this action (see Alcantara v. Mendez, 303 A.D.2d at 338;  Sidor v. Zuhoski, 261 A.D.2d 529, 530).

Furthermore, contrary to the Supreme Court's determination, the record is inadequate to determine that the plaintiffs waived the potential conflict pursuant to Rule 1.7(b) of the New York Rules of Professional Conduct (22 NYCRR 1200.0), as their counsel failed to submit written confirmation of informed consent to the potential conflict (see Shelby v. Blakes, 129 AD3d at 825).

The parties' remaining contentions either are not properly before this Court, need not be reached in light of our determination, or are without merit.

CHAMBERS, J.P., WOOTEN, DOWLING and LANDICINO, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court