MEMORANDUM Plaintiff, Lewin & Baglio, LLP (L&B), is a law firm specializing in medical collection matters. Defendants Arthur Wobig (AW) and Pamela Wobig (PW), who are husband and wife, were non-attorney employees of L&B. PW was employed by plaintiff between November 20:11 and September 2012. AW was employed by plaintiff from March 2012, until April 8, 2019, when it allegedly learned that AW had been embezzling funds from it for several years, by misrepresenting the amount of a salary bonus to which he was entitled. Plaintiff subsequently commenced this action alleging, among other things, that after AW’s termination, it learned that AW had been, and continues to hold himself out as an attorney, and has been soliciting clients from plaintiff, to the benefit of his new employer. Plaintiff now seeks to preliminarily enjoin AW from violating Judiciary Law §479. Defendants cross-move to dismiss the action in its entirety as against PW, and to dismiss the causes of action sounding in (1) usurpation of business opportunities, (2) tortious interference with contractual relations, and (3) unfair competition, as to AW. Plaintiff further moves to disqualify defendants’ counsel. In order to obtain a preliminary injunction pursuant to CPLR 6301, a movant must clearly demonstrate: (1) a likelihood of success on the merits, (2) irreparable injury absent granting of the preliminary injunction, and (3) a balancing of the equities in the movant’s favor (see Trump on the Ocean, LLC v. Ash, 81 AD3d 713, 715 [2011]). The decision whether to grant a preliminary injunction rests in the Court’s discretion (see Id). In support, plaintiff submits, among other things, the affirmation of Lev Lewin, Esq, one of plaintiff’s partners. As to the likelihood of success on the merits, Mr. Lewin states that after terminating AW, plaintiff performed an audit of AW’s work which included review of the firm’s files and conversations with clients. He avers that some clients believed their relationship was with AW and not plaintiff, and others thought that AW was an attorney. He believes that based upon these conversations, AW was either intentionally or recklessly acting in a way that led clients or potential clients to believe that AW was an attorney, and that he was soliciting work for his law firm, contrary to the training plaintiff provided AW, Mr. Lewin further contends that AW is currently soliciting business for his new employer, an attorney, to plaintiff’s detriment. In opposition, defendants submit the affidavit of AW, where he states that he has never held himself out to be an attorney. He avers that he works at a new law firm engaged in medical collections that competes with plaintiff. Although he does not outright deny that he is soliciting clients, he states that he is doing the exact same kind of work he was doing when working for plaintiff. Judiciary Law §479 states that “[i]t shall be unlawful for any person or his agent, employee or any person acting on his behalf, to solicit or procure through solicitation either directly or indirectly legal business, or to solicit or procure through solicitation a retainer, written or oral, or any agreement authorizing an attorney to perform or render legal services, or to make it a business so to solicit or procure such business, retainers or agreements.” Here, although the parties submit competing evidence, a defendant’s demonstration of an issue of fact cannot, on its own, deny a preliminary injunction, that will preserve the status quo pending resolution of the factual issue (see S.P.Q.R. Co. v. United Rockland Stairs, Inc., 51 AD3d 642 [2008]). As to irreparable injury, such harm must be shown to be imminent, not remote or speculative (see Golden v. Steam Heat, Inc., 216 AD2d 440, 442 [1995]), and has been defined as “that which cannot be repaired, restored, or adequately compensated in money, or where the compensation cannot be safely measured” (McLaughlin, Piven, Vogel, Inc. v. W.J. Nolan & Co., 114 AD2d 165 [1986]). It has been held in similar circumstances, that the solicitation of a plaintiff’s clients in violation of Judiciary Law §479 will irreparably harm the plaintiff, as it would be nearly impossible to determine the actual damages plaintiff would sustain from having clients leave its firm (see Willis of New York, Inc. v. DeFelice, 299 AD2d 240, 242 [2002]; Raymond H. Wong PC v. Xue, 233 NYLJ 24, 2005 NY Misc LEXIS 3254, *9 [Sup Ct, New York County 2005]). Lastly, the Court finds that the harm that would be caused to plaintiff and its employees outweighs any harm to defendant (see Lombard v. Station Square Inn Apartments Corp., 94 AD3d 717, 721-22 [2012]). Plaintiff has established that it will be irreparably harmed if AW is not restrained from soliciting its clients, and in contrast, AW does not even allege, let alone establish, how he will be prejudiced if he is enjoined from violating Judiciary Law §479 (see Willis of New York, Inc. v. DeFelice, 299 AD2d 240, 242 [2002]). Therefore, plaintiff has established its entitlement-to a preliminary injunction. Turning to the cross motion, defendants seek to dismiss the claims against P W in the entirety, and as against AW, to dismiss the causes of action sounding in (1) usurpation of business opportunities, (2) tortious interference with contractual relations, and (3) unfair competition. It is well settled that on a motion to dismiss pursuant to CPLR 3211 (a)(7), the facts alleged in the complaint must be accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 NY2d at 87-88; Grant v. LaTrace, 119 AD3d 646 [2014]). “[B]are legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Riback v. Margulis, 43 AD3d 1023, 1023 [2007]). Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove [his or her] claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowiiz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]). As to PW, the complaint alleges that PW and AW had an agreement to enrich themselves at plaintiff’s expense by obtaining and withholding plaintiff’s money, and that they knew they did not have a good faith basis to possess. Although defendants correctly contend that New York does not recognize a cause of action for civil conspiracy (see Rose v. Different Twist Pretzel, Inc., 123 AD3d 897, 898 [2014]; Blanco v. Polanco, 116 AD3d 892, 896 [2014]), plaintiff does state a valid Cause of action for conversion, A conversion occurs when a defendant intentionally exercises control over plaintiff’s property, interfering with plaintiff’s right of possession (see Colavito v. NY Organ Donor Network, Inc., 8 NY3d 43, 49-50 [2006]). Here, accepting the facts alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, plaintiff sufficiently alleges that PW and AW had unauthorized possession of plaintiff s funds, which they refused to return (see Nero v. Fiore, 165 AD3d 823, 825 [2018]), Thus, the conversion claim survives. As to the cause of action against AW sounding in usurpation of corporate opportunities, the “corporate opportunity” doctrine provides that an employee cannot divert and exploit an opportunity that should be deemed an asset of the corporation, for their own benefit (see Ackerman v. 305 E. 40th Owners Corp., 189 AD2d 665,666 [1993]; Alexander & Alexander of New York, Inc. v. Fritzen, 147 AD2d 241, 246 [1989]). Here, plaintiff alleges that AW misrepresented the status of workers’ compensation collection matters so that it appeared to L&B that AW had used his best efforts to collect, and determined that no fee was owed, when in fact, fees were owed to L&B. However, there is no allegation that AW diverted any opportunity away from L&B in order to pursue it for his own benefit. Thus, the cause of action for usurpation of corporate opportunities is dismissed (see Olde Kraft Co. v. Davidian, 128 AD2d 689, 690 [1987]). As to the cause of action for tortious interference with a contract, the elements of that claim are: (1) a contract between plaintiff and a third party; (2) defendant’s knowledge of the contract; (3) defendant’s intentional procurement of a breach; and (4) damages (see Nero v. Fiore, 165 AD3d 823, 825 [2018]). Here, plaintiff adequately pled its cause of action for tortious interference with a contract. As to the cause of action for unfair competition, to sustain such a claim, a plaintiff must allege that the defendants, in bad faith, misappropriated the plaintiff’s labors, skills, expenditures, or good will (see Abe’s Rooms, Inc. v. Space Hunters, Inc., 38 AD3d 690, 692 [2007]). Here, the complaint adequately pleads that AW solicited medical providers he knew had a retainer agreement with plaintiff by falsely telling them that plaintiff puts its own interests before those of its clients, and does not exercise its best efforts to meet its obligations under its agreements. Thus, plaintiff’s cause of action for unfair competition survives. Lastly, plaintiff seeks to disqualify Brian J. Davis, Esq. and the law firm of Brian J. Davis, P.C., from representing defendants, on the basis that he will be a fact witness in this matter. A motion to disqualify an attorney or law firm is addressed to the sound discretion of the trial court (see Levy v. 42 Dune Rd., LLC, 162 AD3d 651, 652-3 [2018]). A party’s entitlement to be represented by counsel of his or her own choice has long been recognized as a valued right, and the movant bears the burden of demonstrating a clear showing that disqualification is warranted (see Id at 653). Disqualification Under the advocate-witness rule may be required only when: (1) it is likely that the testimony to be given by the witness is necessary, and (2) the testimony would be prejudicial to the opposing party (see Id). Here, it is undisputed that after plaintiff terminated AW, Brian Davis, Esq., defendants’ attorney, contacted Lev Lewin, Esq., a partner of plaintiff, requesting the return of AW’s personal belongings, and attempted to negotiate a resolution of the dispute between plaintiff and AW, prior to the filing of a criminal investigation or civil action. Plaintiff alleges that during these negotiations, Mr. Davis made statements to Mr. Lewin via text messages, which are submitted in support of the motion, demonstrating AW’s consciousness of guilt. Plaintiff contends that as a result, plaintiff will call Mr. Davis as a witness to demonstrate that AW knew he unlawfully obtained and retained monies from plaintiff. Although evidence of consciousness of guilt may be admissible in civil actions (see Miller ex rel. Miller v. Lewis, 40 Misc3d 499, 503 [Sup Ct, Kings County 2013]), here, plaintiff is relying upon text messages sent between Mr. Lewin and Mr. Davis in an attempt to resolve the dispute. The text messages plaintiff relies on constitute settlement communications which are inadmissible pursuant to CPLR 4547. Since plaintiff only sought to call Mr. Davis as a witness based upon these inadmissible settlement communications, the motion to disqualify him pursuant to the advocate-witness rule, is denied (see Gottbetter v. Crone Kline Rinde, LLP, 162 AD3d 579, 581 [2018]). Accordingly, defendants’ cross motion, to dismiss is granted solely to the extent that the cause of action for usurpation of corporate opportunities, is dismissed. Plaintiff’s motion to disqualify defendants’ counsel, is denied. Plaintiff’s motion for a preliminary injunction is granted, to the extent of granting a preliminary injunction enjoining Arthur Wobig from soliciting business on behalf of an attorney in violation of Judiciary Law §479. Said injunction is granted on the condition that the plaintiff post an undertaking, pursuant to CPLR 6312(b), with the Clerk of Nassau County in an amount to be fixed in the order to be settled hereon. Upon settlement of the order, the parties may submit proof and recommendations regarding the amount of the undertaking. Settle order. Dated: October 27, 2020
