who dissent in a memorandum by Marlow, J. as follows:MARLOW, J. (dissenting) There is no evidence in the record that third-party plaintiffs’ counsel, the Law Offices of Gary A. Cusano, has ever represented Demetrios Moragianis who is president of third-party plaintiff Proto Realty Management and sole owner of third-party defendant Stateside Construction in his individual capacity. The entire threshold question whether an attorney-client relationship has ever existed between the Law Offices of Gary A. Cusano and either Moragianis or Stateside Construction rests solely on the following language in the Moragianis affidavit submitted in support of Stateside’s motion:
1. I am the sole member of the 3rd party def, Stateside Construction, LLC as well as President of Proto Realty Management Corp. * * * 4. . This case has been discussed with him [Gary Cusano] in my capacity both with Proto Realty and Stateside Construction. * * * Moragianis misstates that the Cusano law firm represents him in the main action, as he is not a party to the action. Rather, plaintiff sued the company of which Moragianis was only an employee, i.e., president. Therefore, there is no attorney-client relationship between Moragianis, a mere witness in this lawsuit,vis-a ” vis Proto Realty, and the Cusano law firm, the attorney for the third-party plaintiff corporation Proto Realty. As far as the discussion with Cusano “ in my capacity” with Stateside, there is no attorney-client relationship between Cusano and Stateside and there never was as Cusano, on behalf of Proto Realty, commenced a third-party action against Stateside. Inasmuch as there was no prior attorney-client relationship between Stateside and third-party plaintiffs’ counsel, there was no basis for Stateside’s motion to disqualify third-party plaintiffs’ counsel for breach of Code of Professional Responsibility DR 4-101 (22 NYCRR 1200.19) and 5-108 (22 NYCRR 1200.27) (see Tekni-Plex v Meyner & Landis, 89 NY2d 123, 131 [1996]; Solow v Grace & Co., 83 NY2d 303, 308 [1994]). Finally, the mere fact that Moragianis states that he had “discussed” the case with Cusano, without detailing the substance of these discussions in any fashion to suggest that Moragianis disclosed any confidences whatsoever to Cusano, is patently insufficient. The affidavit of Moragianis in support of Stateside’s motion contains wholly conclusory assertions which neither establish nor even hint that Moragianis has ever revealed any confidential information to said counsel. I believe that, based on this record, it would be pure speculation to hold otherwise. Accordingly, I would affirm the order to the extent it denied Stateside’s motion to both disqualify third-party plaintiffs’ counsel and to dismiss the third-party complaint. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
