Plaintiffs' and Richard's consent to joint representation is ineffective, Paine Webber argues, because it was procured without the advice of independent counsel. In support of its motion to disqualify, Paine Webber contends that Rosen cannot fulfill his obligation to protect the interests of both clients since it is in the interest of plaintiffs to secure a recovery against Richard as well as Paine Webber. Accordingly, the motion to vacate is granted on condition that plaintiffs and their counsel fulfill all future obligations in this litigation on a timely basis. 1976) (motion to vacate denied in view of pattern of negligent conduct in four year old lawsuit). New York News, Inc., 533 F.2d 53 (2d Cir. 1977) (motion to vacate granted since mental disorder induced counsel to neglect his duties) Daily Mirror, Inc. Furthermore, there is a strong judicial interest in resolving legal issues on their merits, especially where as here the party in default presents a meritorious position. The motion to vacate was filed within 24 days of the default ruling. Moreover, this case is young such discovery as has occurred has not been extensive. Although not exemplary in this case, Rosen's conduct is excusable though barely so. Rosen states in his affidavit that because Paine Webber's motion papers were voluminous and because his associate, who had been assisting him in this matter, was called away from New York, he was unable to complete the necessary research and paper work in time to meet the return date of the motion. Moreover Rule 60 (b) is "a remedial rule to be liberally construed." 7 Moore's Federal Practice ¶ 60.22(2) at 247 (2d ed. Paine Webber opposes the motion to vacate and in the event that Rosen's motion to vacate is granted, asks that its original motion be granted.Ī district court is authorized on motion to "relieve a party or legal representative from a final judgment, order, or proceeding for: (1) mistake, inadvertence, surprise, or excusable neglect. It should be noted that both plaintiffs and Richard have consented to Rosen's continuing representation of them in this matter. Rosen moves to vacate the default and for an order denying the motion to disqualify. In September 1979, Paine Webber moved to disqualify Rosen from representing either plaintiffs or Richard. Rosen, who was retained by the Altschul family in the fall of 1978. Plaintiffs and Richard are both represented in this action by Norman K. Paine Webber claims that it is entitled to indemnification from Richard in the event that it is held liable to plaintiffs. Paine Webber brought a third party claim against plaintiffs' son, Richard Altschul (Richard), who was employed by Paine Webber as a registered representative to service his parents' account. The gist of the complaint is that Paine Webber through misrepresentations and other wrongs depleted plaintiffs' securities account. Gleason, New York City, of counsel.Īrthur and Ida Altschul commenced this action in June, 1979, against Paine Webber, Jackson & Curtis Incorporated, and its parent, Paine Webber Incorporated (Paine Webber) claiming violations of federal securities regulations and common law negligence. Rosen, New York City, for plaintiffs and third-party defendant.īeekman & Bogue, New York City, for defendants and third-party plaintiffs Martin P. PAINE WEBBER, INCORPORATED and Paine, Webber, Jackson & Curtis, Incorporated, Defendants and Third-Party Plaintiffs, Arthur ALTSCHUL and Ida Altschul, Plaintiffs,
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