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THE ATTORNEY REPRESENTED PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS IN THIS REAR-END COLLISION CASE; THE COUNTERCLAIM FOR INDEMNIFICATION AGAINST PLAINTIFF DRIVER CREATED A “PECUNIARY” CONFLICT OF INTEREST BETWEEN PLAINTIFF DRIVER AND PLAINTIFF PASSENGERS; THE ATTORNEY WAS DISQUALIFIED FROM REPRESENTING ALL THE PLAINTIFFS (FIRST DEPT).

The Second Department, reversing Supreme Court, determined the attorney, Gambone, should have been disqualified from representing the plaintiff driver and the plaintiff-passengers in this rear-end collision case. The defendant asserted a counterclaim for indemnification against plaintiff driver, which created a “pecuniary” conflict of interest between the driver and the passengers. It is not clear from the decision why Gambone was precluded from representing the passengers and well as the driver:

… [T]he defendants demonstrated that Gambone’s representation of both the plaintiff driver and the passengers created a conflict of interest … . Although the passengers contend that there was no conflict of interest because the plaintiff driver, whose vehicle allegedly was struck in the rear while he was stopped at a red traffic signal, was not at fault in the happening of the accident, the pecuniary interests of the plaintiff driver conflicted with those of the passengers once the defendants asserted the counterclaim against the plaintiff driver … . Moreover, under the circumstances of this case, the defendants sufficiently demonstrated that Gambone should be disqualified from continuing to represent any plaintiffs in this action … . Diaz v Gomez, 2026 NY Slip Op 01487, First Dept 3-18-26

Practice Point: Even though this was a rear-end collision case and it is not clear that plaintiff driver was negligent, the defendant’s counterclaim against plaintiff driver for indemnification created a “pecuniary” conflict of interest between plaintiff driver and plaintiff passengers. Therefore the attorney was disqualified from representing both plaintiff driver and plaintiff passengers. For reasons which are not provided in the decision, the attorney was disqualified from representing all of the plaintiffs.​

 

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