In an April 28, 2011 decision by Justice Bransten, the court granted the third-party defendant Frieland’s motion to dismiss the third-party complaint against it; denied the defendant/third-party plaintiff 5 LLC’s cross-motion to disqualify Friedland’s attorney (“Frohman”); and denied Friedland’s motion for sanctions. The matter arose out of the rental of real property owned by 5 LLC. Friedland was 5 LLC’s exclusive agent but Siegel, a real estate broker, claimed it had an instrumental role in securing the rental, entitling it to a commission. After a prior order of the Court dismissed all eight causes of action against Friedland, 5 LLC served an amended third-party complaint which repeated each of the eight causes of action previously dismissed, and added a ninth cause for declaratory judgment. Granting Friedland’s motion to dismiss, the court held that “the CPLR does not permit a party to replead causes of action that have already been dismissed through an amendment to the complaint.” The Court also held that the ninth cause of the action was duplicative of the first cause of action and that declaratory relief was inappropriate because 5 LLC had an adequate alternative remedy. The court dismissed 5 LLC’s cross-motion for disqualification, which alleged Frohman had represented both 5 LLC and Friedland and advocated for both at the same time, finding that 5 LLC failed to establish each of the three requirements of a motion to disqualify: 1) 5 LLC was never Frohman’s client; 2) there was not a substantial relationship between the main action and the third-party action; and 3) the interests of the parties were not materially adverse because in the first action both parties maintained that Friedland was the sole procuring broker. Finally, the court found that the sanctions were not warranted because none of the party’s arguments were completely without merit.
Siegel Consultants, Ltd. v. Nokia, Inc., Sup Ct New York County, April 28, 2011, Bransten, J., Index No. 603277/08.