Griffin v. The County of Suffolk

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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NATASHA GRIFFIN,

Plaintiff,

MEMORANDUM ORDER

-against- 23-CV-5032 (NJC) (JMW)

THE COUNTY OF SUFFOLK et al,

Defendants,

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A P P E A R A N C E S:

Christopher H. Fitzgerald

Christopher H. Fitzgerald, Esq.

14 Wall Street, Suite 1603

New York, NY 10005

Attorney for Plaintiff

Leigh Harris Sutton, Esq.

Lily Anne Ockert, Esq.

Daniel Eamonn Smyth, Esq.

Sutton & Smyth, LLP

30 Wall Street, 8th Floor

New York, NY 10005

Attorneys for Plaintiff

Arlene S. Zwilling, Esq.

Anne C. Leahey, Esq.

Suffolk County Attorney

P.O. Box 6100

H. Lee Dennison Building-Fifth Floor

100 Veterans Memorial Highway

Hauppauge, NY 11788-0099

Attorney for Defendant County of Suffolk

No appearance for Defendant Suffolk County Sheriff’s Office

Kyle O. Wood, Esq.

200 Vanderbilt Motor Parkway

Hauppauge, NY 11788

Attorney for Defendant Jay Kaufman

WICKS, Magistrate Judge:

Plaintiff, Natasha Griffin, commenced this suit against the County of Suffolk, the Suffolk

County Sheriff’s Office, and Jay Kaufman in his individual and official capacity (collectively

“Defendants”) alleging various claims under 42 U.S.C. § 1983, including the use of excessive

force and the failure to intervene, as well as assault, battery, intentional infliction of emotion

distress, negligent hiring, training, and supervision, and negligence under New York state law.

(ECF No. 1.)

Currently before the Court is Plaintiff’s motion to disqualify the Suffolk County

Attorney’s Office due to a series of what Plaintiff claims are nonwaivable conflicts of interest.

(ECF Nos. 27.) For the reasons that follow, Plaintiff’s motion to disqualify is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff alleges that while detained at Yaphank Correctional Facility, Defendant

Kaufman,1 a Correctional Officer at Yaphank, and another non-party were to escort Plaintiff to

her appointment with a nurse to treat her diabetes. (ECF No. 1 ¶¶ 17, 20, 22, 23.) Kaufman,

however, placed his hands on Plaintiff’s shoulder and back, despite her compliance with the

officer’s directions. (Id. ¶¶ 24-26.) When she complained, Kaufman subsequently pushed her

up against the wall. (Id. ¶ 29.) At this point she refused to see the nurse and began to make her

way back into her cell when Kaufman “lifted Plaintiff off her feet while she was still in

handcuffs and leg shackles” and slammed her onto the floor. (Id. ¶¶ 31-32.) She was taken to

Brookhaven Hospital and Peconic Bay Medical Center, and as a result of the force used on her,

she was diagnosed with a fractured right clavicle, four fractured ribs on her right side, one

fractured rib on her left side, and also suffered from collapsed lungs. (Id. ¶¶ 35, 42-43.)

1 According to the Complaint, Kaufman is entitled to indemnification from the County of Suffolk for any

liability. (ECF No. 1 ¶ 18.)

Plaintiff filed the Complaint on July 3, 2023 (ECF No. 1) and the appearing Defendants

filed their respective Answers shortly thereafter (ECF Nos. 10, 17) essentially denying all

allegations. The undersigned held an Initial Conference with the parties on October 31, 2023

setting forth a discovery scheduling order, which has since been modified. (ECF Nos. 18 and

22.)

On May 20, 2024, Plaintiff’s counsel filed a letter to the undersigned requesting a stay

and outlining her anticipated motion to disqualify the County Defendant’s counsel in light of

various conflicts between the County and Kaufman. (ECF No. 25.) Specifically, Plaintiff asserts

that a non-waivable conflict of interest exists pursuant to RCP Rule 1.7(a) because the Suffolk

County Attorney’s Office is actively representing Kaufman in an unrelated civil rights action2

that is pending in this Court. Plaintiff also contends that the interests of the County in its

capacity as a municipality are in conflict with the interests of its employees as the defendants in

this case given that it is a § 1983 action. (ECF No. 27.) The motion to stay was granted and the

parties were to bundle file the motion by July 19, 2024, which they did. (ECF Nos. 27-29.)

THE LEGAL FRAMEWORK

The Court is guided by both the American Bar Association (“ABA”) and New York’s

Rules of Professional Conduct (“RPC”) to determine disqualification motions. See Leber

Assocs., LLC v. Entm’t Group Fund, Inc., No. 00-cv-3759 (LTS) (MHD), 2001 U.S. Dist. LEXIS

20352, at *5 (S.D.N.Y. Dec. 7, 2001). Disqualifying counsel has “a serious and immediate

adverse effect by denying the client his choice of counsel.” Soc’y for Good Will to Retarded

Children, Inc. v. Carey, 466 F. Supp. 722, 724 (E.D.N.Y. 1979). Indeed, courts – which have

wide discretion in deciding disqualification motions – should be “loathe to separate a client

2 See Oliver v. the County of Suffolk, 20-cv-01877 (OEM) (JMW) (E.D.N.Y.).

from” chosen counsel. In re Bohack Corp., 607 F.2d 258, 263 (2d Cir. 1979). This fundamental

precept, coupled with the risk for potential abuse of these types of motions for “tactical

purposes,” is why motions for disqualification are subject to strict scrutiny in the federal courts.

See Lamborn v. Dittmer, 873 F.2d 522, 531 (2d Cir. 1989). At bottom, motions to disqualify

should only be granted where the court concludes that there is a “significant risk of trial taint.”

Glueck v. Jonathan Logan, Inc., 653 F.2d 746, 748 (2d Cir. 1981); see also Galloway v. Nassau

Cnty., No. 19-CV-5026 (AMD) (JMW), 2021 WL 5013735 (E.D.N.Y. Oct. 27, 2021). Thus, the

movant shoulders a heavy burden, and must establish specific facts warranting the

disqualification. See Evans v. Artek Sys. Corp., 715 F.2d 788, 791, 794 (2d Cir. 1983).

Conclusory statements merely parroting the language of the applicable Rule of Professional

Conduct will not suffice. More is required.

DISCUSSION

Plaintiff claims that a non-waivable conflict of interest exists between the County and

Kaufman pursuant to RPC Rule 1.7(a). (ECF No. 27 at 4.) Plaintiff argues that because the

County is representing Kaufman in the unrelated Oliver case, the Suffolk County Attorney has

“unfettered access to Kaufman and can obtain, either intentionally or unintentionally,

information that it can use to defend the County at the expense of Kaufman.” (Id. at 7.) Plaintiff

also asserts that one of Kaufman’s responses to Plaintiff’s first set of interrogatories, in which

Kaufman states that he “is represented by conflict counsel assigned by County Defendants,”

proves that a conflict of interest exists. (Id. at 5.) Although the County referred the defense of

Kaufman to an outside law firm in the instant case, Plaintiff claims that this “does not alleviate

the conflict” as the Suffolk Attorney’s Office is actively representing Kaufman in the unrelated

action and the County’s initial decision to refer the defense of Kaufman to a private law firm

demonstrates that their interests run counter. (Id.)

Plaintiff also claims that a conflict of interest exists between the County and Kaufman on

the basis that “[b]ecause a municipality may be held liable under 42 U.S.C. § 1983 for

employee’s actions taken pursuant to municipal policy, the interests of a municipality and its

employees as defendants in a 1983 action are in conflict.” (ECF No. 27 at 6) (citing Dunton v.

County of Suffolk, 729 F.2d 903, 907 (1984)). Specifically, Plaintiff argues that the Suffolk

County Attorney can defend the County and damage Kaufman’s interests by showing that

Kaufman was “not acting pursuant to the County’s policies and training when he engaged in the

alleged conduct.” (ECF No. 27 at 7.) Plaintiff contends that this could leave Kaufman exposed

to a judgment for which indemnification by the County has not been promised, and Kaufman

would have grounds to collaterally attack the judgment should he be found solely responsible at

trial. (Id. at 7-8.) This would allegedly aggrieve Plaintiff because she has an interest in a fair

and final adjudication of her claims. (Id. at 8.)

In opposition, Defendant argues that Plaintiff’s Motion to Disqualify should be

summarily denied because: (i) the County’s conflict of interest arose under Rule 1.7(b)(3), not

Rule 1.7(a), and has now been resolved; (ii) the Motion does not meet federal standards for the

disqualification of an attorney and appears to be a “tactical device”; (iii) the Dunton case does

not support Plaintiff’s contention that the County has an actual conflict of interest with Kaufman;

and (iv) the County and Kaufman have not taken divergent positions with respect to Kaufman’s

immunity from liability. (ECF No. 29.)

First, Defendant asserts that Plaintiff’s reliance on Rule 1.7(a) is misguided because the

County did not refer Kaufman’s representation to outside counsel due to a conflict arising under

RPC Rule 1.7(a), but rather under RPC Rule 1.7(b)(3), which “prohibits representation of

opposing parties in the same litigation, regardless of the clients’ consent.” (Id. at 9.) (quoting

RPC Rule 1.7, Comment 23, Conflicts in Litigation). According to Defendant, the County has

resolved its Rule 1.7(b)(3) conflict with Kaufman as the County’s administrative proceeding

against him has since been resolved. (Id. at 9.)

Second, Defendant asserts that courts in the Second Circuit disqualify attorneys only in

essentially two kinds of cases: “[i] where an attorney’s conflict of interests undermines the

court’s confidence in the vigor of the attorney’s representation of his client, or more commonly

[ii] where the attorney is at least potentially in a position to use privileged information

concerning the other side through prior representation.” (Id. at 11) (quoting Painter v. Turing

Pharms., LLC, 17 CV 7558 (CBA)(LB), 2018 WL 10529533, at *1 (E.D.N.Y. Aug. 7, 2018)).

According to Defendant, Plaintiff fails to meet either prong of this disqualification test because

she fails to show that the Suffolk County Attorney’s Office is: (i) unable to represent Kaufman

vigorously in the Oliver case; and (ii) in a position to use privileged information acquired during

its representation of Kaufman in the Oliver case to hurt Plaintiff’s interest in the instant case.

(Id.) Regarding the latter prong, Defendant contends that the information obtained by the

Suffolk County attorney during its representation of Kaufman in the Oliver case could not affect

Kaufman’s immunity defense in the instant case because the incident alleged in the Oliver case

involves “different facts and circumstances.” (Id. at 12.) Therefore, “any information gleaned

during the Oliver case would solely affect Kaufman’s immunity from liability for the incident on

January 20, 2020, and not the later incident on September 7, 2022” which is at issue in the

instant case. (Id.) Accordingly, Defendant asserts that the instant motion appears to be a

“tactical device” on Plaintiff’s part since her claim that the alleged Rule 1.7(a) conflict affects

her adversely is without merit. (Id. at 10.)

Third, Defendant contends that the allegations in the instant complaint support that

Kaufman was acting within the scope of his employment and, therefore, an actual conflict of

interest does not exist between the County and Kaufman regarding the issue of Kaufman’s

immunity to liability. (Id.) Unlike Dunton, where the incident occurred outside of working

hours in a parking lot after a retirement party, the incident in the instant case occurred during

working hours at the Suffolk County Correctional Facility in Yaphank as Kaufman was

attempting to carry out his task of escorting an inmate to the nurse. (Id. at 15.) Therefore,

Plaintiff claims that the instant complaint does not present an “actual, present, and immediate

conflict” between the interest of the County and the interests of the Kaufman, as was the case in

Dunton. (Id.)

Fourth, Defendant asserts that the County and Kaufman’s position on the immunity issue

do not diverge because the County has not actually claimed that Kaufman was acting outside of

County policies and training during the alleged incident. (Id. at 16.) The affirmative defenses

raised by the County and Kaufman are essentially the same, which further demonstrates their

solidarity on the issue of immunity. (Id). As a ninth affirmative defense, the County’s answer

asserted that the defendants: “at all times complained of, acted reasonably and in good faith in

the discharge of their official duties and responsibilities”; “acted in what they did solely pursuant

to their duties and responsibilities as law enforcement and/or prosecuting officials”; “at all times

acted in good faith in that they reasonably believed that they were exercising and acting within

their statutory and constitutional powers”; and “in performing such duties and responsibilities,

defendants are and were protected by absolute and/or qualified Federal and/or State immunity.”

(Id.) Finally, both the County and Kaufman asserted the defense of qualified and/or absolute

immunity. (Id.) As a tenth affirmative defense, the County asserted that “this action is barred by

the doctrines of qualified and/or absolute governmental immunity for discretionary acts.” (Id.)

A. Conflicts of Interest

a. Is there a Rule 1.7(a) Conflict of Interest?

Rule 1.7(a) states in relevant part that “a lawyer shall not represent a client if a reasonable

lawyer would conclude that either: (1) the representation will involve the lawyer in representing

differing interests; or (2) there is a significant risk that the lawyer’s professional judgment on

behalf of a client will be adversely affected by the lawyer’s own financial, business, property, or

other personal interests.” NYRPC § 1.7(a). “Where a conflict is alleged,” and “the

representation is concurrent, it is prima facie improper for an attorney to simultaneously

represent a client and another party with interests directly adverse to that client.” Spagnuoli v.

Louie’s Seafood Restaurant, LLC, 20 F. Supp. 3d 348, 357 (E.D.N.Y. 2014) (citing Hempstead

Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005)).

Here, although the County is representing Kaufman in the ongoing unrelated Oliver

matter, the County has referred the defense of Kaufman to outside counsel. The County is not

concurrently representing Kaufman in the Oliver case and the instant case and therefore NYRPC

1.7(a) is inapplicable.

Further, the basis for the County’s referral of Kaufman’s defense to outside counsel was

not due to a Rule 1.7(a) conflict, but rather a Rule 1.7(b)(3) conflict. Rule 1.7(b)(3) “prohibits

representation of opposing parties in the same litigation, regardless of the client’s consent.” RPC

Rule 1.7, Comment 23, Conflicts in Litigation. At the time this action was commenced, the

County was in an administration proceeding against Kaufman and therefore a Rule 1.7(b)(3)

conflict squarely existed. However, a Rule 1.7(b)(3) conflict no longer exists given that the

County’s administrative proceeding against Kaufman has since been resolved and the County has

referred Kaufman’s defense in the instant matter to outside counsel. Accordingly, Rule 1.7(a)

does not apply here and Plaintiff’s contention that the Suffolk County Attorney’s Office should

be disqualified is without merit.

b. Is there an Officer v. Municipality Conflict?

The Second Circuit has made clear that simply because of a joint representation of the

County and its employees does not result in automatic or per se disqualification. See Coggins v.

County of Nassau, 615 F. Supp. 2d 11, 33 (E.D.N.Y. 2009) (“The Second Circuit has been clear

that ‘in Dunton ... this Court declined to create a per se rule requiring disqualification whenever a

municipality and its employees are jointly represented in a Section 1983 case. Rather, a case-by-

case determination is required.”); see also Norton v. Town of Islip, 04 CV 3079 (NGG) (WDW),

2006 WL 2465031, at *5 (E.D.N.Y. Aug. 23, 2006.)) When a municipality defendant agrees to

indemnify its own officer in a § 1983 case, it follows that their interests are aligned, rather than

being in conflict. See Galloway v. Nassau County, 569 F. Supp. 3d 143, 149 (E.D.N.Y. 2021)

(“the Nassau County Police Officer Indemnification Board agreed to indemnify each individual

defendant for all damages, including punitive damages, which aligns the parties.”); see also

Coggins, 615 F. Supp. 2d at 33 (holding that the interests of Nassau County and its officers were

aligned given the final determinations of the Nassau County Police Officer Indemnification

Board which found that the officer acted within the scope of their employment).

The Second Circuit in Dunton reversed and remanded an award of damages for plaintiff

where the defendant-husband’s attorney had been involved in representations that were

prejudicial to the husband, which provided the husband with no chance to put forward a good

faith immunity defense. Dunton v. County of Suffolk, 729 F.2d 903, 909 (2d Cir. 1984). There,

the County Attorney defended itself—instead of the defendant—stating that the defendant was

acting as an “irate husband” and not under the color of state law, thereby taking a position

“directly contrary to his interest.” Id. at 907-08. The Dunton court noted that in such an

instance, “disqualification would have been appropriate even before any proceedings began.” Id.

at 907 (emphasis added).

Decisions of the Second Circuit following Dunton support that a conflict of interest does

not exist between a municipality and an officer where the municipality raises defenses

supporting the officer’s immunity from liability. See Rodick v. City of Schenectady, 1 F.3d 1341,

1350 (2d Cir. 1993) (finding that “an improper conflict of interest” did not exist where the City

attorney argued that “the officers were acting in their official capacity” and “argued all possible

defenses available to them, including the qualified immunity defense”); see also Patterson v.

Balsamico, 440 F.3d 104, 115 (2d Cir. 2006) (“[t]he particular conflict cited in Dunton is simply

not present here since “[a]t no time did [the attorney who represented all defendants] assert that

[he corrections officer] was acting ‘outside the scope of his employment’ during the January

1999 assault, as the attorney had in Dunton.”)

Here, the interests of the County and Kaufman appear at this juncture to be aligned rather

than in conflict, unlike the court’s finding in Dunton. The County has supported the claims by

Kaufman that he is immune from liability and has affirmed that he was acting within the scope of

his employment during the alleged incident at Yaphank Correction Facility.3 Further, both the

3 In its answer, the County asserted as a ninth affirmative defense that the defendants “at all times

complained of, acted reasonably and in good faith in the discharge of their official duties and

responsibilities” and “in performing such duties and responsibilities, defendants are and were protected by

absolute and/or qualified Federal and/or State immunity.” (ECF No. 10 at 5.)

County and Kaufman have asserted the defense of qualified and/or absolute immunity in their

respective answers, which demonstrates their alignment on the issue of whether Kaufman is

immune from liability. (See ECF Nos. 10 and 17.) Accordingly, Plaintiff’s claims that the

Suffolk County Attorney’s Office representation of the County is detrimental to Kaufman and

would open the door for Kaufman to collaterally attack the judgment should he be found solely

responsibly at trial is unconvincing and does not show specific facts to which this Court can

conclude that there is a “significant risk of trial taint.” Glueck, 653 F.2d at 748.

Since the County has supported claims by Kaufman that he is immune from liability and

was acting in the scope of his employment, there is no conflict of interest at this time that

warrants the Suffolk County Attorney’s Office to be disqualified from representing the County in

this case.

CONCLUSION

For the reasons stated, Plaintiffs’ motion to disqualify the Suffolk County Attorney’s

Office (ECF No. 27) is DENIED.

Dated: Central Islip, New York

August 6, 2024

S O O R D E R E D:

James M. Wicks

/S/_

JAMES M. WICKS

United States Magistrate Judge