Pacheco et al v. 1454 Diner, Inc. et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
—————————————————————x
BRIANA PACHECO AND HELEN HIOTIS, :
:
Plaintiffs, 	:
: 	MEMORANDUM AND
: 	ORDER
-against- 	:
:
1454 DINER, INC., MIKE MOUDATSOS 	:
ELIAS MOUDATSOS, JOSE LUIS 	: 	25-CV-4665 (PKC) (CHK)
ROSENDO, FLORES MARIANO JIMENEZ :
PORTILLA, FERNANDO MAGDALENO- 	:
TZUNUN-MORALES; DARIO CHAVEZ, 	:
AND MARK STUMER 	:
:
Defendants. 	:
—————————————————————x
CLAY H. KAMINSKY, United States Magistrate Judge:
Plaintiffs Briana Pacheco and Helen Hiotis move to disqualify Mark Stumer
and his firm, Mark B. Stumer & Associates, PC, from representing Defendants1 in
this matter. For the reasons set forth below, that motion is denied with leave to
renew.
I. 	Background
On August 21, 2025, Plaintiffs filed a complaint against their former
employer 1454 Diner, Inc. (d/b/a Mike’s Diner of Brooklyn) (the “Diner”), its owners,
several employees, and Mark Stumer, the Diner’s legal counsel. See ECF No. 1.
Plaintiffs allege that they were subjected to sexual harassment and retaliation in
1 Although Mr. Stumer himself is also defendant in this action, for the purposes of this motion,
“Defendants” refers to all defendants excluding Stumer.
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violation of Title VII of the Civil Rights Act of 1964, New York State Human Rights
Law, and New York City Human Rights Law.
Plaintiffs allege that they were subject to sexual harassment from several of
the Diner’s employees and one part-owner while working at Mike’s Diner. First
Amended Complaint (“FAC”), ECF No. 24, ¶ 4. Although Plaintiffs reported the
harassment to their supervisors, Defendants took no action on these complaints.
FAC ¶¶ 80, 99–100, 109–11, 114–17.
After their initial complaints went unaddressed, Plaintiffs formally
complained of Defendants’ behavior by hiring counsel and sending a demand letter
to the Diner in October 2024. FAC ¶ 131. But several days after counsel mailed the
demand letter, the Diner terminated Ms. Pacheco’s employment. FAC ¶¶ 131–32.
Mr. Mike Moudatsos claimed that Ms. Pacheco was terminated due to a lack of
business—but Plaintiffs note that the Diner advertised an open server position just
one week prior to Ms. Pacheo’s termination. FAC ¶ 133.
In January and February 2025, Plaintiffs each filed a complaint with the
EEOC regarding the sexual harassment they experienced. FAC ¶¶ 134–35. Shortly
after Ms. Hiotis filed her EEOC complaint, the Diner “failed to pay Ms. Hiotis the
proper amount for her work as a counter worker, cut her hours, and added an
additional server to Ms. Hiotis’ shifts.” FAC ¶ 136. In April 2025, Mr. Elias
Moudatsos tried to speak with Ms. Hiotis about her concerns. FAC ¶ 137. Mr. Elias
Moudatsos offered Ms. Hiotis $5,000 to cover her lost earnings and agreed to
schedule her as normal moving forward in exchange for her withdrawal of the
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EEOC complaint. FAC ¶ 138. A few days later, Mr. Elias Moudatsos provided Ms.
Hiotis with a draft affidavit prepared by Mr. Stumer, informing her that she needed
to sign the affidavit to receive the $5,000. FAC ¶ 138. According to Plaintiffs, the
affidavit falsely stated that Ms. Hiotis lied about the sexual harassment allegations,
the conduct was consensual, and Ms. Hiotis convinced Ms. Pacheco to file a false
claim with the EEOC. FAC ¶ 138. Ms Hiotis refused to sign the affidavit. FAC
¶ 138.
Later, Ms. Hiotis had a call with Mr. Elias Moudatsos and Mr. Stumer. FAC
¶ 139. During the call, Ms. Hiotis again refused to sign the affidavit and withdraw
her EEOC complaint. FAC ¶ 139. In response, Plaintiffs allege that Mr. Stumer,
speaking to Mr. Elais Moudatsos, stated “okay, so we’ll need to fire her, Lee . . .
She’s still suing you.” FAC ¶ 139. Mr. Stumer ended the call shortly after. FAC
¶ 139.
In July 2025, Ms. Hiotis was fired from her position at the Diner. FAC ¶ 140.
Plaintiffs claim that Ms. Hiotis was terminated in retaliation for her complaints of
sexual harassment and discrimination, and allege that Mr. Mike Moudatsos stated
she was terminated “because she complained and was a troublemaker.” FAC ¶ 140.
In an email to Plaintiffs’ counsel sent after Plaintiffs filed suit, Mr. Stumer
explained that he “advised [his] client to fire your client based on her admitting to
him that she filed a false claim with the EEOC and for terrible job performance.”
ECF No. 40-3.
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Plaintiffs filed their complaint on August 21, 2025 and an amended
complaint on September 3, 2025. See ECF Nos. 1, 24. On October 3, 2025, Mr.
Stumer filed a motion for a premotion conference regarding a motion to dismiss he
intends to file regarding only the claims asserted against him. See ECF No. 37. All
other Defendants filed an answer to the complaint on September 26, 2025. See ECF
No. 35.
Now, Plaintiffs move to disqualify Mr. Stumer from representing Defendants
in this action. Plaintiffs argue that Mr. Stumer’s representation of Defendants
violates the witness-advocate rule, set forth at Rule 3.7 of the New York Rules of
Professional Conduct (the “RPC”), and creates a non-waivable conflict of interest in
violation of Rule 1.7 of the RPC.
II. 	Legal Standard
Disqualification of counsel is “committed to the sound discretion of the
district court.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir.1990) The
authority to disqualify derives from the Court’s “inherent power to ‘preserve the
integrity of the adversary process.’” Hempstead Video, Inc. v. Village of Valley
Stream, 409 F.3d 127, 132 (2d Cir. 2005) (quoting Board of Education of the City of
New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)).
Courts evaluate motions to disqualify opposing counsel with “fairly strict
scrutiny,” particularly when they are premised on the witness-advocate rule, to
“guard against tactical use” of such motions. Lamborn v. Dittmer, 873 F.2d 522, 531
(2d Cir. 1989); see First Trust Nat'l Assoc. v. Moses & Singer, No. 99-CV-1947, 2000
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WL 1093054, at *6 (S.D.N.Y. Aug. 4, 2000) (“Motions to disqualify opposing counsel
are viewed with disfavor because they impinge on a party’s right to employ the
counsel of its choice.”). Accordingly, “the party seeking disqualification must meet a
heavy burden of proof in order to prevail.” Gormin v. Hubregsen, No. 08-CV-7674,
2009 WL 508269, at *2 (S.D.N.Y. Feb. 27, 2009) (quotations omitted). In
determining whether to disqualify counsel, courts look to the American Bar
Association and state disciplinary rules for guidance, although not every violation of
a disciplinary rule requires disqualification. Finkel v. Frattarelli Bros., 740 F. Supp.
2d 368, 373 (E.D.N.Y. 2010).
III. 	Discussion
A. 	Standing to Bring a Motion to Disqualify
As a preliminary matter, Plaintiffs have standing to bring this motion.
Defendants argue that Plaintiffs lack standing to disqualify Mr. Stumer because
Plaintiffs lack an attorney-client relationship. Def’s Opp., ECF No. 43, at 2–3.
However, this argument lacks merit with respect to disqualification under both the
witness-advocate rule and on conflict-of-interest grounds.
To support their argument that Plaintiffs lack standing, Defendants cite to
United States v. Cunningham, which states: “(a)s a general rule, courts do not
disqualify an attorney on the grounds of conflict of interest unless the former client
moves for disqualification.” 672 F. 2d 1064, 1072 (2d Cir. 1982). But Cunningham
addressed only counsel’s prior representation that presented a conflict of interest
and did not address a conflict of interest presented by concurrent representation.
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Additionally, in Cunningham, the Court further explained the motivations behind
that rule: “The refusal to disqualify in the absence of a motion by the former client
is all the more appropriate in the context of a criminal prosecution with its
implication of constitutional rights.” Id. Defendants’ reliance on Satina v. New York
City Human Resources Administration is similarly misplaced, as that case also
addressed disqualification solely in the context of successive representation. See
Satina v. New York City Hum. Res. Admin., No. 14-CV-3152, 2015 WL 6681203, at
*1–2 (S.D.N.Y. Nov. 2, 2015).
Further, courts in this Circuit have concluded that parties have standing to
seek disqualification of opposing counsel on conflict of interest grounds. See
Billewicz v. Town of Fair Haven, Vermont, No. 22-CV-73, 2022 WL 4115966, at *2
(D. Vt. Aug. 11, 2022) (collecting cases); Nolan v. City of New York, 754 F. Supp. 3d
548, 552 (S.D.N.Y. 2024); Miller v. Apple, Inc., No. 25-CV-1172, 2025 WL 1031283,
at *2 (S.D.N.Y. Apr. 7, 2025). And although it appears that the Second Circuit has
not explicitly held that opposing counsel has standing to raise a motion to disqualify
under the witness-advocate rule, it has assumed as much: motions brought under
the witness-advocate rule seem to be made exclusively by opposing counsel. See,
e.g., Murray v. Met. Life Ins. Co., 583 F.3d 173, 177–81 (2d Cir. 2009); Hempstead,
409 F.3d at 129–30. Opposing parties have standing to bring such motions because
they may suffer prejudice if an attorney serves as both a witness and an advocate.
See Murray, 583 F.3d at 178 (describing the harms posed by allowing counsel to
serve as both an advocate and a witness); MacArthur v. Bank of N.Y., 524 F. Supp.
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1205, 1208 (S.D.N.Y. 1981). Courts outside the Second Circuit have likewise found
standing to seek disqualification of opposing counsel under the witness-advocate
rule. See, e.g., Ambush v. Engelberg, 282 F. Supp. 3d 58, 65 (D.D.C. 2017) (finding
that the plaintiff had standing to seek disqualification based on the District of
Columbia’s witness-advocate rule); Wakefield v. Advanced Med. Servs. Corp., No.
10-CV-143, 2010 WL 11628521, at *5 (D. Ariz. Sept. 7, 2010) (finding standing
because opposing counsel’s “simultaneous service as counsel and witness in the case
. . . . would cause imminent injury to Defendants”); Colyer v. Smith, 50 F. Supp. 2d
966, 974 (C.D. Cal. 1999) (finding standing to seek disqualification of opposing
counsel because it “directly affect[ed] [plaintiff’s] access to evidence and the orderly
conduct of the trial”). This Court reaches the same conclusion.2
B. 	Disqualification Under the Witness-Advocate Rule
Plaintiffs argue that Mr. Stumer and his firm must be disqualified under the
witness-advocate rule because of his role in advising Defendants to fire Ms. Hiotis.
Pl’s Mot. at 2. Specifically, Plaintiffs claim that Mr. Stumer’s testimony is critical on
(1) the call with Ms. Hiotis, Mr. Elias Moudatsos, and himself; (2) the affidavit Mr.
Stumer prepared for Ms. Hiotis; and (3) the factual basis for Ms. Hiotis’
termination. Pl’s Mot. at 2.
2 Even if Plaintiffs’ standing to bring this motion were in doubt, the Court may address the issue of
disqualification through the Court’s “inherent power to ‘preserve the integrity of the adversary
process.’” Hempstead Video, 409 F.3d at 132 (quoting Nyquist, 590 F.2d at 1246); see Blake v. Race,
No. 01-CV-6954, 2005 WL 8181513, at *8 (E.D.N.Y. Jan. 12, 2005) (raising the issue of
disqualification sua sponte).
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Under Rule 3.7 of the New York Rules of Professional Conduct, with limited
exceptions, lawyers “shall not act as an advocate before a tribunal in a matter in
which the lawyer is likely to be a witness on a significant issue of fact,” known as
the witness-advocate rule. N.Y. Rules Prof’l Conduct R. 3.7(a). In Murray, the
Second Circuit identified several motivations underlying this rule: “(1) the lawyer
might appear to vouch for his own credibility; (2) the lawyer’s testimony might place
opposing counsel in a difficult position when she has to cross-examine her lawyer-
adversary and attempt to impeach his credibility; (3) some may fear that the
testifying attorney is distorting the truth as a result of bias in favor of his client;
and (4) when an individual assumes the role of advocate and witness both, the line
between argument and evidence may be blurred, and the jury confused.” Murray,
583 F.3d at 178; see Ramey v. Dist. 141, Int'l Ass'n of Machinists & Aerospace
Workers, 378 F.3d 269, 282–83 (2d Cir. 2004). Additionally, “[a] jury may view an
attorney as possessing special knowledge of a case and therefore accord a testifying
attorney’s arguments undue weight.” MacArthur, 524 F. Supp. at 1208.
To succeed on a motion to disqualify counsel under this rule, the moving
party must first demonstrate the necessity of the testimony. Finkel, 740 F. Supp. 2d
at 373. In evaluating necessity, courts consider “the significance of the matters, the
weight of the testimony, and the availability of other evidence.” Id. (quoting Kubin
v. Miller, 801 F. Supp. 1101, 1113 (S.D.N.Y.1992)). “The existence of additional
witnesses with the ability to testify to the same facts is often fatal to a claim for
disqualification under the lawyer as witness rule.” Rothman v. Complete Packaging
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& Shipping Supplies, Inc., No. 22-CV-2821, 2023 WL 2740862, at *2 (E.D.N.Y. Mar.
31, 2023).
Second, “to the extent that the attorney would not be providing testimony on
his client’s behalf, the party seeking to disqualify the attorney must show that there
is a substantial likelihood that the testimony would be prejudicial to the witness-
advocate’s client.” Finkel, 740 F. Supp. 2d at 373. To demonstrate prejudice, the
moving party must show that the testimony of the opposing party’s attorney will be
“sufficiently adverse to the factual assertions or account of events offered on behalf
of the client, such that the bar or the client might have an interest in the lawyer’s
independence in discrediting that testimony.” Murray, 583 F.3d at (quoting
Lamborn, 873 F.2d at 531). The moving party “bears the burden of demonstrating
how and as to what issues in the case prejudice may occur and that the likelihood of
prejudice occurring is substantial.” Id.
Generally, courts have limited disqualification to circumstances where
counsel “actually serves as an advocate before the jury.” Finkel, 740 F. Supp. 2d at
373; Murray, 583 F.3d at 179. Nevertheless, disqualification may occur whenever it
becomes “apparent the appearing attorney would be a crucial trial witness.”
NAVCAN.DC, Inc. v. Rinde, No. 23-CV-2267, 2024 WL 4635334, at *2 (S.D.N.Y.
Oct. 30, 2024).
1. 	Mr. Stumer is not disqualified from representing himself.
As an initial matter, Mr. Stumer cannot be disqualified from representing
himself in this matter. Pursuant to 28 U.S.C. § 1654, litigants, including licensed
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attorneys, may represent themselves in a case pending before federal courts.
Accordingly, several courts have held that the witness-advocate rule does not
prohibit attorneys from representing themselves. See NAVCAN.DC, Inc., 2024 WL
4635334, at *2 (S.D.N.Y. Oct. 30, 2024) (noting that New York courts have also
found that the attorney-witness rule does not “generally control when the attorney
is also a litigant” (quoting Walker & Bailey v. We Try Harder, Inc., 123 A.D.2d 256,
257 (1st Dept. 1986))); Wolk v. Cohen, No. 94-CV-5096, 1997 WL 197303, at *2 (E.D.
Pa. Apr. 21, 1997) (“This court has held that [the witness-advocate rule] is
inapplicable to attorneys representing themselves pro se.”). Plaintiffs’ motion is
therefore denied as to Mr. Stumer’s representation of himself in this matter.
2. 	Plaintiff’s motion is premature as to the remaining Defendants.
With respect to the remaining defendants, Plaintiffs’ motion is premature.
Courts routinely deny motions to disqualify counsel as premature where there has
been no discovery, a pending dispositive motion may resolve the party’s concerns,
and “it is not yet clear the extent to which an attorney’s testimony might be
necessary or prejudicial.” See Ross v. Blitzer, No. 09-CV-8666, 2009 WL 4907062, at
*3 (E.D.N.Y. Dec. 21, 2009); Prout v. Vladeck, 316 F. Supp. 3d 784, 809 (S.D.N.Y.
2018); Gormin v. Hubregsen, No. 08-CV-7674, 2009 WL 508269, at *3 (S.D.N.Y. Feb.
27, 2009) (collecting cases). At this stage, Plaintiffs have not met their burden of
establishing that Mr. Stumer’s testimony is necessary or prejudicial.
First, Plaintiffs have not established at this stage that Mr. Stumer’s
testimony is necessary. Although Plaintiffs argue that Mr. Stumer’s testimony is
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necessary because his “subjective intent [is] squarely at issue,” Pl’s Reply at 2, Mr.
Stumer’s anticipated motion to dismiss may eliminate the necessity of testimony
about his intent. If the motion is granted, there may no longer be a need to probe
Mr. Stumer’s intent during the call with Ms. Hiotis and Mr. Elias Moudatsos. Any
remaining relevant testimony about the call could be provided by Ms. Hiotis and
Mr. Elias Moudatsos. See O'Rear v. Diaz, No. 24-CV-1669, 2024 WL 3983363, at *12
(S.D.N.Y. Aug. 29, 2024) (rejecting argument that counsel’s testimony concerning a
phone call was necessary where there was another participant to that call and most
of the call was recorded).3 Testimony about the motivations for firing Ms. Hiotis
can also be provided by other witnesses like Mr. Elias Moudatsos.
Second, to the extent Plaintiffs assert that Mr. Stumer’s testimony is
necessary to Plaintiff’s case, it is too early to assess whether Mr. Stumer’s
testimony would be prejudicial to Mr. Stumer’s clients, the Defendants. Plaintiffs
have shown “no reason to believe that counsel’s testimony would be inconsistent
with their clients’ account of the facts.” Finkel, 740 F. Supp. 2d at 377; Acker v.
Wilger, No. 12-CV-3620, 2013 WL 1285435, at *3 (S.D.N.Y. Mar. 29, 2013) (same);
see Mahn v. Allegis Grp., Inc., No. 24-CV-8326, 2025 WL 1380993 (S.D.N.Y. May 12,
2025) (denying motion to disqualify where Plaintiff only speculated that Defendants
may have a malpractice claim). Instead, Plaintiffs merely assert that Mr. Stumer’s
testimony may conflict with Defendants’ own recollection of events and that Mr.
Stumer’s defense “may require shifting blame to his clients.” Pl’s Mot. at 3
3 Discovery will reveal whether the call in this case was recorded. The specificity with which it is
quoted in Plaintiffs’ motion, which included an “uh,” suggests it was. See Pl’s Mot. at 2.
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(emphasis added). This is not sufficient evidence to meet the high burden placed on
a party seeking to disqualify opposing counsel. See O’Rear, 2024 WL 3983363, at
*12 (denying motion to disqualify as premature where it was not yet clear whether
the defendants would raise an affirmative defense based on reasonable care or
whether counsel would be an important fact witness to that defense). Further,
Plaintiffs’ claims that Mr. Stumer’s involvement in the case “would improperly
allow him to influence the fact-finder” are merely speculative at this stage. Pl’s
Reply at 4; see Kong v. Lindenbaum, No. 24-CV-4808, 2025 WL 1808757, at *4
(E.D.N.Y. July 1, 2025) (reaching a similar conclusion where “plaintiff has not
offered any reason for the Court to find that a tribunal would be misled”).
Accordingly, Plaintiffs motion to disqualify Defendants’ counsel under Rule
3.7 must be denied at this stage in the proceedings, without prejudice to renewal if
it becomes apparent that Mr. Stumer’s testimony will be both necessary at trial and
is prejudicial to Defendants.
C. 	Disqualification Based on Conflict of Interest
Plaintiffs also argue that Mr. Stumer should be disqualified under Rule 1.7 of
the Professional Rules of Conduct, as they claim Mr. Stumer’s representation of
Defendants poses an irreconcilable and unwaivable conflict of interest. Pl’s Mot.
at 3.
Rule 1.7 provides:
(a) Except as provided in paragraph (b), a lawyer shall not represent a
client if a reasonable lawyer would conclude that either:
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(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.
22 N.Y.C.R.R. § 1200.0. Accordingly, the Second Circuit has held that it is “prima
facie improper for an attorney to simultaneously represent a client and another
party with interests directly adverse to that client.” Hempstead Video, 409 F.3d at
133 (internal quotation marks and citation omitted).
Even where a conflict exists, Rule 1.7(b) provides that a conflicted lawyer
may still represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide
competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client
against another client represented by the lawyer in the same litigation or
other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
22 N.Y.C.R.R. § 1200.0.
Assuming without deciding that Mr. Stumer’s representation of Defendants
poses a conflict of interest, the Court is not convinced that this conflict is
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unwaivable. Although Plaintiffs argue that a conflict under Rule 1.7 is unwaivable
where “the attorney’s personal liability is intertwined with the clients’ liability,” Pl’s
Reply at 3, Plaintiffs cite only criminal cases to support this proposition. But the
Sixth Amendment concerns underlying those cases are not present in this civil case.
See Craig v. City of New York, No. 20-CV-2152, 2022 WL 2238451, at *7 (E.D.N.Y.
June 22, 2022), aff'd, No. 24-1180-CV, 2025 WL 1604359 (2d Cir. June 6, 2025)
(rejecting the plaintiffs’ reliance on criminal cases to argue that an attorney should
be disqualified for a conflict of interest, as the criminal cases focused on “a concern
that a defendant could successfully appeal a conviction based on ineffective
assistance of counsel.”). Further, as required by Rule 1.7(b), Mr. Stumer represents
that he will be able to provide competent and diligent representation to Defendants
and that Defendants have signed consent forms that waive any conflict. Def’s Opp.
at 5. Accordingly, the Court deems that any conflict of interest has been waived.
Defendants are directed to file their consent forms on the docket by February 10,
2026.
IV. 	Conclusion
For the foregoing reasons, Plaintiffs’ motion to disqualify Mr. Stumer is
denied without prejudice.
SO ORDERED.
______________________________
CLAY H. KAMINSKY
United States Magistrate Judge
Dated: 	February 3, 2026
Brooklyn, New York
/s/ Clay H. Kaminsky
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