Macy's Inc. v. J.C. Penny Corp.

• Decision Date: 27 June 2013
• Parties: MACY'S INC., et al., Plaintiffs–Respondents, v. J.C. PENNY CORPORATION, INC., Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 616
968 N.Y.S.2d 64
2013 N.Y. Slip Op. 04891

MACY'S INC., et al., Plaintiffs–Respondents,
v.
J.C. PENNY CORPORATION, INC., Defendant–Appellant.

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

June 27, 2013.

[968 N.Y.S.2d 65]

Nixon Peabody LLP, New York (Frank H. Penski of counsel), for appellant.

Jones Day, New York (Michael A. Platt of counsel), for respondents.

GONZALEZ, P.J., RENWICK, DeGRASSE, MANZANET–DANIELS, FEINMAN, JJ.

[107 A.D.3d 616]Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered October 11, 2012, which, to the extent appealable, denied defendant's motion to disqualify plaintiffs' counsel, unanimously affirmed, with costs.

The portion of the subject order that denied defendant's oral application to supplement the record did not resolve a motion made on notice, so no interlocutory appeal lies therefrom as of right (CPLR 5701[a][2]; see Sholes v. Meagher, 100 N.Y.2d 333, 336, 763 N.Y.S.2d 522, 794 N.E.2d 664 [2003];Smith v. United Church of Christ, 95 A.D.3d 581, 943 N.Y.S.2d 530 [1st Dept. 2012], lv. denied and dismissed19 N.Y.3d 940, 950 N.Y.S.2d 94, 973 N.E.2d 190 [2012];Manning v. City of New York, 29 A.D.3d 361, 814 N.Y.S.2d 611 [1st Dept. 2006], lv. denied7 N.Y.3d 708, 822 N.Y.S.2d 482, 855 N.E.2d 798 [2006] ). Defendant's remedy was to either move Supreme Court to vacate the order that denied its application, the denial of which would have been appealable ( see Sholes, 100 N.Y.2d at 335, 763 N.Y.S.2d 522, 794 N.E.2d 664), or to move for leave to appeal to this Court by permission ( seeCPLR 5701[c]; AllianceBernstein L.P. v. Atha, 100 A.D.3d 499, 954 N.Y.S.2d 44 [1st Dept. 2012];Manning, 29 A.D.3d at 361, 814 N.Y.S.2d 611), and defendant did not avail itself of either remedy.

Supreme Court providently exercised its discretion in denying defendant's motion to disqualify Jones Day from representing plaintiffs in this action because Jones Day informed defendant about potential conflicts, and defendant waived its right to protest thereto ( see McElduff v. McElduff, 101 A.D.3d 832, 833, 954 N.Y.S.2d 891 [2d Dept. 2012];Harris v. Sculco, 86 A.D.3d 481, 926 N.Y.S.2d 897 [1st Dept. 2011] ). By agreement dated March 7, 2008 Jones Day undertook to represent defendant regarding certain “intellectual property litigation and trade mark registration” in Asia. That agreement expressly informed defendant about the possibility that Jones Day's present or future clients “may be direct competitors of [defendant] or otherwise may have business interests that are contrary to [defendant]'s interests,” and “may seek to engage [Jones Day] in connection with an actual or potential transaction or...