Opinion
2012-12-5
Dennis GABEL, appellant, v. Blanche GABEL, respondent.
John Z. Marangos, Staten Island, N.Y., for appellant.
, J.P., RUTH C. BALKIN, THOMAS A. DICKERSON, and SYLVIA HINDS–RADIX, JJ.
In an action, inter alia, for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Richmond County (Panepinto, J.), dated January 12, 2012, as granted the defendant's motion to disqualify his counsel.
ORDERED that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, and the defendant's motion to disqualify the plaintiff's counsel is denied.
In this action, the defendant moved to disqualify the plaintiff's counsel on the ground that counsel had previously represented the defendant in connection with her formation of a corporation. The Supreme Court granted the motion.
“[A] party seeking disqualification of its adversary's lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” ( Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663;see Falk v. Chittenden, 11 N.Y.3d 73, 78, 862 N.Y.S.2d 839, 893 N.E.2d 116;Solow v. Grace & Co., 83 N.Y.2d 303, 308, 610 N.Y.S.2d 128, 632 N.E.2d 437). Due to the “significant competing interests inherent in attorney disqualification cases,” however, the Court of Appeals has advised against “mechanical application of blanket rules,” in favor of a “careful appraisal of the interests involved” ( Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d at 131, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663). In that respect, “ ‘[a] party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted’ ” ( Matter of Dream Weaver Realty, Inc. [ Poritzky–DeName], 70 A.D.3d 941, 943, 895 N.Y.S.2d 476, quoting Aryeh v. Aryeh, 14 A.D.3d 634, 634, 788 N.Y.S.2d 622;see Goldman v. Goldman, 66 A.D.3d 641, 885 N.Y.S.2d 641).
Here, the defendant failed to show that the prior representation was substantially related to the current representation. Specifically, the defendant did not argue, and there are no facts in the record to support a finding, that the prior representation concerned any confidential information regarding the value of the corporation ( seeBusiness Corporation Law §§ 402, 403) or that the attorney was provided with any information that is not contained in the corporate filing itself. Further, the defendant refused to provide the plaintiff with discovery concerning the corporation, contending that the corporation was “closed” and that the defendant never realized any profits from it. Under the particular circumstances of this case, there is nothing to suggest an appearance of impropriety concerning the attorney's representation of the plaintiff in the divorce action and, therefore, the defendant's motion for disqualification should have been denied ( see Matter of Homola, 234 A.D.2d 295, 295–296, 651 N.Y.S.2d 83;see also Bloom v. St. Paul Travelers Cos., Inc., 24 A.D.3d 584, 585, 806 N.Y.S.2d 692).