without negligence. The two are intimately connected, and
removing the tort claims from the arbitration risks inconsistent
results while expending judicial resources on a duplicative
proceeding. Contrary to Plaintiffs' contention, the Second
Circuit has not held arbitration is inappropriate for tort
claims, as amply demonstrated by a plethora of Second Circuit
precedent. The Court admonishes Plaintiffs counsel, Andrew
Gilchrist, Esq., of Harris Beach & Wilcox, L.L.P., against
indulging in similar overstatements that verge on
misrepresentations to the Court in the future.
3. Third Party Beneficiaries
Finally, Plaintiffs contend that the claims of plaintiff Karen
Trimper and Kyle Trimper do not fall within the coverage of the
arbitration agreement, and as non-signatories the arbitration
clause cannot be enforced against them by the promisor. The
In PromoFone, Inc., v. PCC Management, Inc., 224 A.D.2d 259,
637 N.Y.S.2d 405 (1st Dep't, 1996), petitioner, PromoFone, Inc.,
sought to compel arbitration in New York, and to stay California
litigation brought by PCC Management, Inc., a signatory to an
arbitration agreement. The stay was granted and PCC was ordered
to arbitrate not only with PromoFone, but also with Falconwood,
a non-signatory to the arbitration agreement. The lower court's
order was affirmed because "the record reveal[ed] that the
issues in the overall dispute between the other petitioners and
appellant PCC are `inextricably interwoven' with the claims
against non-signatory Falconwood." See also, Berg v. Dimson,
151 A.D.2d 362, 542 N.Y.S.2d 609 (1st Dept., 1989), lv. denied
75 N.Y.2d 703, 552 N.Y.S.2d 109, 551 N.E.2d 602 (1990).
Similarly, the claims of plaintiffs Karen and Kyle Trimper are
derivative of and closely related to those of plaintiff Bruce
Trimper. The arbitration proceeding could therefore potentially
resolve issues related to the claims of all three plaintiffs.
B. Cross Motion to Disqualify
For reasons passing understanding, Robert W. Muilenburg, Esq.,
Defendant's attorney in this action, accompanied representatives
of EnSafe, an environmental consultant retained by Defendant,
employees of Defendant's Albany branch, and another consultant
to a site inspection at Plaintiffs' home on August 6, 1997.
Muilenburg contends that he went with the full knowledge of one
of Plaintiffs' counsel, Carl G. Dworkin, Esq. of Harris Beach.
Dworkin affirms that he advised Muilenburg that he saw no reason
for an attorney to be present for the testing, and states that
at no time did he give Muilenburg permission to converse with
Plaintiffs or their agents. What followed is much disputed.
Muilenburg claims that he merely exchanged pleasantries with
plaintiff Bruce Trimper, but Mr. Trimper has submitted an
affidavit stating that Muilenburg attempted to engage him in
Plaintiffs now seek to disqualify the McElroy firm for an
alleged violation of D.R. 7-104, which prohibits an attorney
during the course of representation from "[c]ommunicat[ing] or
caus[ing] another to communicate on the subject of the
representation with a party he knows to be represented by a
lawyer in that matter unless the lawyer has the prior consent of
the lawyer representing such other party or is authorized by law
to do so." DR 7-104(a)(1), Disciplinary Rules of the Code of
Professional Responsibility. Muilenburg's argument that
Plaintiffs waived their right to assert an ethical violation
based on the passage of time finds no support in the case law or
common sense. Time does not heal all wounds, nor make good a
breach of the attorney-client relationship.
This Court is mindful that a violation of the rules of ethics
does not alone trigger disqualification. W.T. Grant Co. v.
Haines, 531 F.2d 671, 677 (2d Cir. 1976). Generally, courts
have expressed reluctance to disqualify counsel because of
concerns regarding (1) the "immediate adverse effect
disqualification has on the client separated from his lawyer,"
(2) "the desire to preserve, to the greatest extent possible,
. . . the individual's right to be represented by counsel of his
or her choice," and (3) "the awareness that disqualification
motions are being made, with increasing frequency, with purely
strategic purposes in mind." Vegetable Kingdom, Inc. v.
Katzen, 653 F. Supp. 917, 921 (N.D.N.Y. 1987). Nevertheless,
where a clear conflict of interest is found to exist, "any doubt
is to be resolved in favor of disqualification." Hull v.
Celanese Corp., 513 F.2d 568, 571 (1975); see also Cheng v.
GAF Corp., 631 F.2d 1052, 1059 (2d Cir. 1980), vacated on
other grounds and remanded, 450 U.S. 903, 101 S.Ct. 1338, 67
L.Ed.2d 327 (1981). Furthermore, where a lawyer's conduct might
"taint" the case, disqualification is appropriate. Papanicolaou
v. Chase Manhattan Bank, N.A., 720 F. Supp. 1080, 1083-84
Papanicolaou is instructive. There, the court disqualified
defendants's law firm after the attorney in charge of the
defense of the case met with the plaintiff for one and one-half
hours outside the presence of the plaintiffs counsel. The court
noted that the rule banning communications with the opposing
party serves two separate interests. First, it prevents opposing
counsel from obtaining admissions or privileged information from
the other party without his or her counsel being present.
Second, it preserves the integrity of the attorney-client
relationship by preventing opposing counsel from challenging the
tactics or reputation of that party's attorney. See
Papanicolaou, 720 F. Supp. at 1084.
According to Trimper's affidavit, the conversation apparently
focused on why certain application holes previously drilled by
Defendant had been reopened and why two refilled holes had not
been repainted. These queries fall short of the
cross-examination that took place in Papanicolaou, but
arguably were an attempt by Muilenburg to obtain admissions or
privileged information from his adversary's client. Muilenburg's
reliance on the fact that the communication took place prior to
filing of the current action is unavailing since D.R. 7-104
contains no such limiting language. As to his claim that
Plaintiffs suffered no harm or prejudice as a result of the
communication, the Court expresses its disbelief that Muilenburg
believes that an attorney can indulge in an impermissible
attempt to secure information but evade sanctions on the basis
that he was unsuccessful.
More constructive is Muilenburg's contention that several
other individuals were present who could corroborate his account
are unavailing since he failed to submit any affidavits by those
individuals in opposition to Plaintiffs' cross-motion. To
resolve this issue, the Court directs Muilenburg to assemble
those affidavits forthwith. In the interim, the Court will
disqualify the McElroy firm but stay its order until such time
as it may review those submissions.
Accordingly, it is hereby
ORDERED that Defendant's motion to stay this action is GRANTED
and the action STAYED pending arbitration;
ORDERED that Plaintiffs' motion to disqualify the law firm of
McElroy, Deutsch & Mulvaney is GRANTED but the disqualification
STAYED pending submission of the affidavits referenced above,
and those affidavits are to be submitted no later than February
21, 2000; and it is
FURTHER ORDERED that the Clerk of the Court serve a copy of
this Order on all parties by regular mail.
IT IS SO ORDERED.
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