HICKEY v. UNITED STATES SOCCER FEDERATION INC (2021)

The following papers numbered E76-E95, E97-E100, E147-E171, E178-E184 read on this motion by Defendants United States Soccer Federation, Inc. (“USSF”) and Damir Culum (“Culum”) for an order granting disqualifying Rocco G. Avallone, Esq. as counsel for the Plaintiff pursuant to the Rules of Professional Conduct Sections 1.7 (Conflict of Interest: Current Clients) and 3.7 (Lawyer As Witness), codified under 22 NYCRR § 1200.0.

PAPERS NUMBERED

Notice of Motion-Affirmations-Exhibits E76-E95

Affirmation in Support-Exhibits E97-E100

Affirmation in Opposition-Exhibits-Memo of Law E147-E171

Reply Affirmation-Exhibits E178-E182

Letters E183-E184

Upon the foregoing papers, the motion by Defendants USSF and Culum (“USSF”) is granted in part and denied in part for the following reasons:

Plaintiff commenced this action by filing a Summons and Verified Complaint on March 19, 2020, wherein he alleged the following: on September 22, 2019, Culum was a Referee at a game between the College Point Flames and the Oyster Bay Park at College Point Field No.1, located at 23-40 130th Street, College Point, New York. Defendant Jose Abarca (“Abarca”) was the head coach of the Oyster Bay Park team. Plaintiff was a registered player for the College Point Flames’ team. Defendant Isaias Gomez-Gamboa (“Gamboa”) was an “unregistered” player, whose name did not appear on the Oyster Bay Park's team roster, nor did he have a league pass. Culum permitted Gamboa to play for the Oyster Bay Park team. At approximately 8:30 pm, Gamboa struck and kicked Plaintiff on, among other places, the right side of his face, eye and nose, causing him to sustain serious, severe, and permanent injuries during the game. On February 14, 2020, Gamboa was arrested and arraigned in Queens County Criminal Court for assault and was charged with Felony Assault in the Second Degree (Penal Law Section 120.05[1]). On or about February 14, 2020, a Queens County Criminal Court Judge issued an Order of Protection in favor of Plaintiff against Gamboa.

Defendants USSF filed a Verified Answer on July 6, 2020 and Defendant Gamboa filed a Verified Answer on October 10, 2020. Thereafter, Gamboa commenced a Third Party Action against Third Party Defendant Long Island Soccer Football League, Inc. (“LISFL”) by filing a Third Party Summons and Complaint on April 7, 2021. LISFL filed a Verified Answer on May 28, 2021.

Defendants USSF now move to disqualify Rocco G. Avallone, Esq. as counsel for Plaintiff pursuant to the Rules of Professional Conduct Sections 1.7 and 3.7. In support thereof, they submitted, among other things, the following: Verified Bill of Particulars; Plaintiff's deposition transcript; Culum's deposition transcript; Yuri Fishman's deposition transcript; James Brosi's deposition transcript; LISFL's response to Gamboa's Combined Demands for Discovery and Inspection, and Notice to Admit; LISFL's Constitution; Complaint filed in the matter entitled People v Isaias Gomez-Gamboa, Criminal Court, Queens County; and a proposed allocution in the Criminal Action. Defendant Gamboa joins in co-Defendants USSF's and Culum's request to disqualify Mr. Avallone as counsel for Plaintiff.

Third Party Defendant LISFL admitted to the following requests in a Notice to Admit served by Defendant/Third Party Plaintiff Gambo: on September 25, 2019, Rocco Avallone was a LISFL's 3rd Vice President and a member of LISFL's Executive Committee.

Plaintiff testified to the following: he was a member of the College Point Flames soccer team that plays in the LISFL. The College Point Flames has been affiliated with the LISFL for a “long time”, and he has played on this team for nearly 24 years. The College Point Flames pays dues to LISFL to be a member of the league. Each player is issued an identification card issued by LISFL, which shows that they are part of a team in LISFL. LISFL sets up the soccer matches, provides the schedule, the brackets, and the teams that the College Point Flames played. On the day of the alleged altercation, the opposing team for the subject match was the Oyster Bay Park team, a soccer team that the College Point Flames had previously played. The subject soccer match was delayed because the Oyster Bay Park team was short players. The match proceeded, and as Oyster Bay Park players arrived at the field they joined, so there was a full team of eleven players. Although he knew his attorney was affiliated with LISFL, he did not know what Mr. Avallone's role or title with LISFL was, either at the time of the incident or at the time of his deposition. He also did not know why LISFL was not named as a Defendant in this action.

Yuri Fishman appeared at his deposition pursuant to a subpoena, and testified to the following: He is the scheduling secretary for LISFL, as well as a representative for LISFL to the Eastern New York Adult Soccer Association, the governing body of adult soccer in the eastern half of New York State. In his role with LISFL, he interacts with Mr. Avallone in Mr. Avallone's capacity as President of LISFL. LISFL imposes discipline on players and coaches related to league operations. However, LISFL does not have a standing policy regarding warning the referees or referee assigner of incidents involving specific teams. Gamboa was a registered player in the league during the 2015-2016 LISFL soccer season. If a player pass is not returned at the end of a particular season, the team is charged $5. No records are kept related to any specific players who fail to return a player pass. On the player passes, there is no indication of what year or season the pass is for. A referee would only know that the pass was invalid once compared against the submitted roster. LISFL provided its own policies for operating and managing the league in its Constitution. He had previously spoken with Joseph Brosi, the College Point Flames’ coach and the Vice President of LISFL, regarding the subject altercation. In response to Mr. Brosi's request, he provided Mr. Brosi with a roster for the Oyster Bay Park team, along with pictures of the players as they appeared on LISFL's website as part of the registration process. Mr. Avallone, along with the Board of Directors, manages LISFL in accordance with LISFL's Constitution. He, Mr. Brosi, and Mr. Avallone are all Board Members of LISFL. The New York State Referee Association, an organization he “believed” that Mr. Brosi is affiliated with, secured and scheduled referees for LISFL. He was aware of an alleged incident involving the Oyster Bay Park team, which occurred a week prior to the subject incident. This prior incident resulted in the Oyster Bay Park team's suspension by LISFL. At that time, the President of LISFL was Gus Xikis and he would have been provided with a copy of the referee report and made aware of the prior incident. Mr. Xikis died last year. In an email Mr. Abarca (coach for the Oyster Bay Team) sent to LISFL, he stated that during the prior match Mr. Brosi used racial slurs against the Oyster Bay Park team multiple times. He was not aware of any investigation by LISFL regarding this accusation.

Chapter II, Section 3(D) of LISFL's Constitution provides, in pertinent part, that “[t]he Executive Committee shall research, review and act upon all charges of misconduct against any of its members”. Chapter VI, Section (1)(c) provides, in pertinent part, that “[t]he Executive Board will investigate and act upon any team's willful use of ineligible players, even without protest from such team's opponents, and may rule games forfeit or otherwise reverse games played within the most recent season”. Chapter VI, Section (1)(B) provides that:

To be eligible to play for a club in any scheduled league or cup game, each player must, at the time of such game, be duly and properly registered with that club, and must produce a valid player's pass. Clubs with teams in different divisions must have color coordinated passes.

Chapter VII, Section 5(c) of LISFL's Constitution provides, in pertinent part, the following:

Substitutes and late arrivals after the start of the game must present their player passes to the referee upon substitution into the game, and the player must sign and list his shirt number on the line up forms at any time deemed convenient by the referee (before the game, during the game, at half time or full time).

Chapter VIII — FINES/PROTESTS/CLAIMS & APPEALS, Section 4. Decisions and Appeals: Arbitration provides, in pertinent part, the following:

All decisions of the Arbitration Board will be announced at the next General Meeting of the league․ The President shall present the appeal at the next Executive Committee meeting at which point deliberation and voting will take place. A representative for the club making the appeal must appear before the Executive Committee to explain the basis of the club's appeal and to respond to any questions from the Committee.

In opposition, Plaintiff argues no conflicts exist which would warrant Mr. Avallone being disqualified as his counsel. Even if there was, he waived any conflicts of interest. Plaintiff further argues that Mr. Avallone is not a necessary witness subject to disqualification pursuant to Rule 3.7(a). However, even if Mr. Avallone is a necessary witness, his testimony would fall under one of the permissible exceptions set forth under Rule 3.7(a). In support thereof, Plaintiff has submitted, among other things, the following: an affirmation from Mr. Avallone; his affidavit; a letter, dated July 30, 2021, from Mr. Avallone to him notifying him of any potential conflicts of interest due to Mr. Avallone's position with LISFL. In his affidavit, Plaintiff “waive[s] any potential conflicts that may arise due to Mr. Avallone's current position as President of the LISFL and any former positions he has held there as well.”

Mr. Avallone states the following: he denies having a role in any investigation concerning any Oyster Bay Park soccer team. He is currently the President of LISFL, and prior to his role as President, he was a member of the LISFL Board of Directors. On April 15, 2020, then LISFL President Gus Xikis, passed away. He was elected as President of LISFL on August 27, 2020. In his prior position as a member of the Board of Directors, he was not involved in any investigation relating to the subject incident and was not aware of the prior incident until it was raised at Yuri Fishman's deposition. Former LISFL President, Gus Xikis, closely oversaw and was involved with all LISFL's investigations, including the subject incident. Despite the procedures set forth in LISFL's constitution, the other executive members had limited, if any, participation in these investigations. On or about February 8, 2020, Avallone & Bellistri, LLP, was retained by Plaintiff. When Plaintiff retained Avallone & Bellistri, LLP, Plaintiff was aware that he had a role with the LISFL and never raised any concerns or issues of potential conflicts. He does not represent LISFL as a client in any matter as their attorney. He does not have any personal interest in LISFL that would conflict with his representation of Plaintiff.

“ ‘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. While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination’ ” (Hele Asset, LLC v S.E.E. Realty Associates, 106 AD3d 692, 693 [2d Dept. 2013], quoting Gulino v Gulino, 35 AD3d 812, 812 [2d Dept. 2006] [internal citations omitted]). “The disqualification of an attorney is a matter that rests within the sound discretion of the trial court” (Bajohr v Berg, 143 AD3d 849, 850 [2d Dept. 2016]). “Where a party seeks to disqualify counsel of an adversary in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time” (Ike and Sam's Group, LLC v Brach, 138 AD3d 690 [2d Dept. 2016]). “If the party moving for disqualification knew or should have known of the facts underlying the alleged conflict of interest for a prolonged period before bringing the motion, that party may be found to have waived any objection to the other party's representation” (id.). In addition, where a motion to disqualify is brought in the middle of litigation where the moving party was aware of the alleged conflict of interest well before bringing the motion, it can be inferred that the motion was made to secure a tactical advantage (id.).

The branch of Defendant USSF's motion seeking to disqualify Mr. Avallone as Plaintiff's counsel pursuant to Rule 1.7 is denied. Rule 1.7(b)(4) provides that “[n]otwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if ․ each affected client gives informed consent, confirmed in writing”. Here, in Plaintiff's affidavit he explicitly consented to Mr. Avallone representing him in this action notwithstanding any conflicts of interest Mr. Avallone may have, including his affiliation with LISFL.

The branch of USSF's motion seeking to disqualify Mr. Avallone pursuant to Rule 3.7 is granted. Initially, the Court finds that USSF's reply papers will be considered in determining this branch of the motion. In a letter, dated August 11, 2021 (E-183), Plaintiff's counsel argued that USSF's reply papers should not be considered by the Court, because it was filed on the return date of the motion at approximately 2:00 pm in contravention of CPLR 2214(b). However, Plaintiff did not show it was prejudiced by USSF's late submission, nor did he request an adjournment to serve a sur-reply pursuant to this Court's Part Rules.

USSF annexed to its reply, among other things, Mr. Fishman's errata sheet wherein he made the following the changes, appearing in brackets, to his testimony:

Q. Have you consulted with an attorney regarding your testimony here today?

A. I did not. [I did not should be I did].

Q. Is it your understanding that Mr. Avallone is here as your attorney today?

A. My understanding is Mr. Avallone is part of the league. I wasn't sure I needed an attorney. [I wasn't sure I needed an attorney should be I wasn't sure I needed an attorney because Mr. Avallone is an attorney and representing me.]

Q. Okay. Did you discuss your testimony here, with Mr. Avallone, at any time?

A. No, I did not. [No, I did not should be No, I did not specifically discuss my testimony, but we did review documents.]

MR. AVALLONE: I'm representing Yuri Fishman in this deposition.

MR. WRIGHT (counsel for Defendants USSF and Culum): Okay. Is there a formal retainer or agreement of representation?

MR. AVALLONE: No.

MR. WRIGHT: You never discussed his testimony here today?

MR. AVALLONE: Not his testimony, but we discussed him coming here today; we did that.

MR. AVALLONE: I'm not going to talk about what we discussed, other than we did discuss him coming here today.

Q. Mr. Fishman, are you aware that Mr. Avallone is the plaintiff's attorney in this matter?

A. Yes, I am.

Q. And you're obviously aware that Mr. Avallone is the president of the Long Island Soccer Football League?

A. Yes, he is.

MR. WRIGHT: I'd like to register my objection on the record to Mr. Avallone's assertion of attorney/client privilege.

Rule 3.7 provides, in relevant part, the following:

(a) A lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal.

Here, the Court finds Mr. Avallone is likely to be a witness with respect to significant issues of fact in this litigation. As the current President of LISFL, former 3rd Vice President and a member of the Executive Committee, Mr. Avallone is likely to be called as a witness to discuss LISFL's policies and procedures, including but not limited to, the investigation of any incidents with teams registered with LISFL, the role of LISFL with the referee, and player's eligibility to participate in games. Mr. Fishman was not fully aware of the investigation regarding the prior incident between the College Point Flames and the Oyster Bay Park teams. Significantly, LISFL is now a Third Party Defendant in this action and these issues are contested by Defendants. It cannot be overlooked the significance of Mr. Avallone's current position as President of LISFL and his prior roles as an officer and member of the Executive Board, particularly since Mr. Xikis, the former President of LISFL, is deceased. Moreover, Mr. Avallone and Mr. Fishman conceded that Mr. Avallone represented Mr. Fishman at his deposition where he testified on behalf of LISFL. Accordingly, the branch of the motion seeking to disqualify Plaintiff's counsel pursuant to Rule 3.7 is granted, and this action shall be stayed for 45 days after service of a copy of this order with notice of entry for Plaintiff to retain new counsel.

Robert I. Caloras, J.