Siroty v. Nelson, 1

• Decision Date: 18 January 1994
• Docket Number: No. 1,No. 2,1,2
• Citation: 200 A.D.2d 617,606 N.Y.S.2d 728
• Parties: William C. SIROTY, etc., Plaintiff, v. Richard F. NELSON, et al., Defendants, United States Fidelity and Guaranty Company, Defendant Third-Party Plaintiff-Respondent; Long Island Trust Company, Third-Party Defendant-Appellant. (Action) Milton MASON, etc., Plaintiff, v. William SIROTY, et al., Defendants; United States Fidelity and Guaranty Company, Defendant-Respondent, Long Island Trust Company, Appellant. (Action)
• Court: New York Supreme Court — Appellate Division

Page 728

606 N.Y.S.2d 728

200 A.D.2d 617

William C. SIROTY, etc., Plaintiff, v. Richard F. NELSON, et al., Defendants, United States Fidelity and Guaranty Company, Defendant

Third-Party Plaintiff-Respondent;

Long Island Trust Company, Third-Party Defendant-Appellant.

(Action No. 1)

Milton MASON, etc., Plaintiff, v. William SIROTY, et al., Defendants;

United States Fidelity and Guaranty Company, Defendant-Respondent,

Long Island Trust Company, Appellant. (Action No. 2)

Supreme Court, Appellate Division,

Second Department.

Jan. 18, 1994.

Cullen and Dykman, Garden City (James G. Ryan, of counsel), for appellant.

Cusack & Stiles, New York City (Frank C. McLaughlin, Jr., and Thomas Pietrantonio, of counsel), for respondent.

Before RITTER, J.P., and COPERTINO, PIZZUTO and JOY, JJ.

MEMORANDUM BY THE COURT.

In actions, inter alia, to determine liability for the loss of funds entrusted to a trustee, the Long Island Trust Company (now the Bank of New York) appeals from an order of the Surrogate's Court, Nassau County (Radigan, S.), dated July 12, 1993, which denied its motion to disqualify the law firm of Cusack & Stiles from representing United States Fidelity and Guaranty Company.

ORDERED that the order is affirmed, with costs.

The Bank of New York contends that Cusack & Stiles should be disqualified as counsel for United States Fidelity and Guaranty Company (hereinafter USF & G) because Cusack & Stiles was simultaneously representing the Bank of New York in Rosenberg v. The Bank of New York, pending in the Supreme Court, New York County, Index No. 2065791, while prosecuting a claim on behalf of USF & G against the Bank of New York. We disagree.

Cusack & Stiles has met its burden of demonstrating the absence of any conflict in loyalties or impediments to a vigorous representation of each client (see, Aerojet Props. v. State of N.Y., 138 A.D.2d 39, 530 N.Y.S.2d 624).