JANA v. WEST 129TH STREET REALTY CO LLC

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Supreme Court, Appellate Division, First Department, New York.

JANA L., Plaintiff-Appellant, v. WEST 129TH STREET REALTY CO. LLC, Defendant-Respondent,

West 129th Street Realty Corp., etc., et al., Defendants. West 129th Street Realty Co. LLC, Third Party Plaintiff-Respondent, v. 408-412 West 129th Street Associates LLC, Third-Party Defendant-Respondent.

Decided: August 10, 2006

TOM, J.P., ANDRIAS, MARLOW, WILLIAMS, McGUIRE, JJ. Madeline Lee Bryer, New York, for appellant. Nicoletti Hornig Campise & Sweeney, New York (Jana Sperry of counsel), for West 129th Street Realty Co. LLC, respondent. Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for 408-412 West 129th Street Associates LLC, respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered on or about December 8, 2005, which denied plaintiff's motion to require that defendant West 129th Street Realty Co. and its indemnitor, 408-412 West 129th Street Associates be jointly represented at trial, unanimously affirmed, without costs.

Given the circumstances of this personal injury arising from an assault by an intruder in an apartment building, where the sale of the building closed 90 minutes later and plaintiff sued, among others, both the seller and the purchaser, the trial court providently exercised its discretion in permitting both entities to continue to be represented by separate counsel of their choice at trial despite both the dismissal of the complaint against the purchaser on its motion for summary judgment and this Court's prior ruling (22 A.D.3d 274, 802 N.Y.S.2d 132) granting the seller summary judgment on its cross claim for contractual indemnification against the purchaser, which determination is still subject to possible further review upon entry of a final judgment after trial.   Indeed, if the trial court had granted plaintiff's motion, to which the seller did not object, the purchaser effectively would have been deprived of its right to conflict-free counsel of its choice (cf. Chemprene v. X-Tyal Intl. Corp., 55 N.Y.2d 900, 449 N.Y.S.2d 23, 433 N.E.2d 1271 [1982], modfg. on partial dissent of Lazer, J., 78 A.D.2d 668, 432 N.Y.S.2d 407 [1980] ).