DKSJ, LLC v Cohen 2025 NY Slip Op 32574(U) July 14, 2025 Supreme Court, New York County Docket Number: Index No. 653100/2024 Judge: Margaret A. Chan is part of a larger group of cases including a legal malpractice case. The legal malpractice case, not entirely fleshed out here, appears to be a question of whether the law firm represented the entity, each of the participants or just some of them. A Breach of Fiduciary Duty and Legal Malpractice claims were made in a separate case.
“In this action to recover for breach of a Put Agreement, plaintiff DKSJ LLC moves to renew its prior motion for summary judgment in lieu of complaint pursuant to CPLR 2221 and 3213 on the grounds that its federal lawsuit was dismissed for lack of subject matter jurisdiction. Defendant opposes and cross· moves to (a) disqualify plaintiffs counsel, the law firms Lowenstein Sandler LLP and Michelman & Robinson LLP; and (b) consolidate this action with the related proceeding Joseph S. Cohen v DKSJ LLC et al, Index No. 650971/2025. For the
reasons below, plaintiffs motion to renew is granted and, upon renewal, summary judgment in lieu of complaint is granted, and defendant’s cross-motion is denied in its entirety.”
“As summarized in this.court’s prior Decision and Order denying plaintiffs motion for summary judgment (NYSCEF # 41, Prior Order), plaintiff claims that on October 15, 2021, it entered into a series of agreements under which it would purchase 1% of the equity ofnon·party Snow Joe, LLC (Snow Joe) for $10,000,000 (NYSCEF # 4, Katz Aff ,r 5). 1 Defendant Joseph S. Cohen is the controlling manager of Snow Joe (id ,r 4). One of the agreements was a “Put Agreement” under which plaintiff could demand repayment of its $10,000,000 from defendant in exchange for plaintiffs equity in Snow Joe (Put Right) (NYSCEF # 6, Put Agreement§ l[a]). As relevant to the Prior Order, the Put Agreement contained a forum selection clause selecting the United States District Court for the Southern District of New York for any litigation or dispute (id. § 13). Plaintiff avers that on
January 30, 2023, plaintiff demanded repayment under the Put Agreement, and defendant failed to make repayments (Katz Aff ,r,r 9·14; see also NYSCEF # 7, Put Notice).”
“According to defendant, in the two years following the Put Agreement, Snow Joe’s economic standing slowly but surely began to fall due to the geopolitical circumstances at the time (Defs Aff ,r,r 11·13, 15). Defendant alleges that Katz insisted defendant hire Lowenstein to help Snow Joe through these troubles (id ,r 16). Defendant did ultimately hire Lowenstein to represent Snow Joe in late 2022 as shown by an Engagement Email from Lowenstein to defendant (NYSCEF # 25, Engagement Email). Notably, the Engagement Email makes clear that Lowenstein’s “engagement is limited to the Company [Snow Joe], and [Lowenstein did] not agree □ to represent any other person, or any business entity” (id at 1). The Engagement Email also contains a conflict waiver regarding Katz and his affiliates (id at 3-4).”
“On March 5, 2025, plaintiff filed the present motion to renew based on the District Court’s dismissal and set the return date for March 25. On March 17, the day before his opposition was due, defendant filed the complaint in the Malpractice Action bringing claims for a declaratory judgment that the Put Agreement was unenforceable against him, breach of fiduciary duty claims against Lowenstein and one of its partners, aiding and abetting breach of fiduciary duty against plaintiff and its principal, and legal malpractice against Lowenstein and its partner along
with aiding and abetting legal malpractice against plaintiff and its principal (see Index No. 650971/2025, Joseph S. Cohen v DKSJ LLC et al, NYSCEF # 3 ,r,r 134· 164). The next day, on March 18, 2025, defendant timely filed his opposition to plaintiffs renewal motion as well as the present cross-motions to disqualify plaintiffs counsel (both Lowenstein and Michelman) and consolidate this action with the Malpractice Action (NYSCEF # 50, Notice of Cross-Motion; NYSCEF # 51, Defs Renewal Opp).”
“In the first of many unsuccessful arguments, defendant argues that plaintiffs renewal motion must be denied because the District Court’s decision is not “newly discovered evidence” in that plaintiff knew about the forum selection clause even at the time of the original motion (Defs Renewal Opp at 4). However, the District
· Court’s decision and the existence of the forum selection clause are two completely different facts as is implicitly recognized in the decisions this court cited (see Spirit, 84 AD3d at 456; Micro Balanced Products, 238 AD2d at 285). It would appear that defendant conflates the forum selection clause and the District Court’s decision so to
manufacture a procedural hurdle and waste judicial resources and time. It also appears that this argument was made in bad faith given that defendant opposed the original motion on the forum selection grounds only to concede that the federal court had no subject matter jurisdiction. In any event, the District Court’s decision
constitutes a definitive ruling on the forum selection issue that defendant placed before this and the District Court. In sum, plaintiffs argument fails.
Plaintiffs motion to renew is therefore granted, and upon renewal, the merits of the summary judgment in lieu of complaint motion are addressed here.”
“Defendant cross moves to disqualify plaintiffs counsel, both Lowenstein and Michelman. On a motion to disqualify counsel, “the moving party must prove, among other things, the existence of a prior attorney-client relationship between itself and opposing counsel” (Campbell v McKean, 75 AD3d 479,480 [1st Dept 2010]). “To determine whether an attorney-client relationship exists, a court must consider the parties’ actions …. [Aln attorney-client relationship is established where there is an explicit undertaking to perform a specific task. … While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions” (Pellegrino v Oppenheimer & Co., 49 AD3d 94, 99 [1st Dept 2008]).
“A party has a right to be represented by counsel of its choice, and any restrictions on that right must be carefully scrutinized … The decision of whether to grant a motion to disqualify rests in the discretion of the motion court” (Mayers v Stone Castle Partners, LLC, 126 AD3d 1, 6 [1st Dept 2015] [quotation marks
omitted]).
Here, defendant’s cross·motion to disqualify plaintiffs counsel fails because there was never an attorney-client relationship between defendant and either of plaintiffs law firms. Lowenstein’s engagement email makes clear that Lowenstein was only representing Snow Joe, not any other individuals (see Engagement Email at 1). This alone is dispositive, as it is well-settled that an attorney representing an organization does not represent the individuals within it, even if they are directors or majority shareholders (see 22 NYCRR 1200.0 rule 1.13 [a] [“When a lawyer
employed or retained by an organization is dealing with the organization’s directors, officers, employees, members, sh~reholders, or other constituents … the lawyer is the lawyer for the organization and not for any of the constituents.”]). Nor does defendant allege any conduct by Lowenstein that could have created an attorney·
client relationship going beyond that with Snow Joe. Similarly, defendant does not allege in any way, shape, or form that Michelman ever represented him. Defendant’s sole argument is that Lowenstein “undoubtedly” shared Snow Joe’s confidential information with Michelman and therefore should be removed (Defs Renewal Opp at 11). However, defendant offers only speculation to support this claim (id at 10·11). These conclusory arguments
fail to establish “the existence of a prior attorney-client relationship” (Campbell, 75 AD3d at 480).
There is no reason to reach defendant’s remaining arguments, including waiver, that plaintiff is not an “affiliate” of Katz for the purpose of waiver, that Lowenstein “created the event that resulted in the Put Right,” or any other
argument. All else is irrelevant in the face of defendant’s failure to establish a former attorney-client relationship with plaintiffs counsel, and so the cross·motion to disqualify must be denied.”