Opinion
Index No. 504935/2022 Motion Seq. No. 9
08-23-2023
MELISSA SILLA, Plaintiff, v. THOMAS SILLA, JR., Defendant.
Unpublished Opinion
PRESENT: CHERYL J. GONZALES, J.S.C.
DECISION AND ORDER
Cheryl J. Gonzales Judge
Recitation, as required by C.P.L.R. § 2219(a), of the papers considered in the review of these motions.
Papers Numbered
Plaintiff's Order to Show Cause, Affirmation, Affidavit NYSCEF Doc. #5-7
Defendant's Opposition, Affirmation, Affidavit NYSCEF Doc. #25-26
Plaintiff's Reply Affirmation, Affidavit NYSCEF Doc. # 43 - 44
Exhibits NYSCEF Doc. # 8 - 16; 27 - 40; 45 - 57
Upon the foregoing, cited papers, and all prior proceedings, in this plenary action, the decision and order on this motion is as follows:
Plaintiff, Melissa Silla, pro se, commenced this plenary action on February 17, 2022 upon filing a Summons and Complaint in which Plaintiff requested an order enforcing the terms of the parties' separation agreement, Defendant, Thomas Silla, Jr., appeared by counsel and interposed a Verified Answer with Counterclaims on March 14, 2022. Plaintiff interposed an Answer to Defendant's Counterclaims on April 12, 2022.
Defendant moved by Order to Show Cause on July 11, 2023 seeking an Order (1) disqualifying Lloyd Thompson, Esq. from representing the Plaintiff in this action, (2) deeming that the Plaintiff has waived her right to depose the Defendant for her failure to abide by the compliance order herein, and (3) directing that any attorney retained by Plaintiff shall appear in this proceeding and only may be relieved by Order of this Court, and (4) for such other further and different relief as to this Court is just and proper.
Defendant asserts that Counselor Thompson should be disqualified from representing Plaintiff in this matter because Defendant previously discussed the merits of the case with him. Defendant recalled that approximately four years ago, a mutual friend, Deborah Katsoris, introduced Counselor Thompson to him at a location owned by Ms. Katsoris. Defendant explained that he spoke with Counselor Thompson about the intricacies of the pending divorce, including the Plaintiff s false filings against Defendant and the "lower court' s" adverse rulings, for approximately thirty minutes over the course of the evening. Defendant states that Counselor Thompson shared his past work with the NYPD with Defendant, who also worked with NYPD, and expressed that he would be available for Defendant if he wanted to change attorneys. Defendant also claims that the conversation between he and Counselor Thompson was comprehensive, although it took place in what was a social setting.
Defendant claims that Counselor Thompson called his attorney's office in approximately June 2023 to inform him that Plaintiff had retained Counselor Thompson for the sole purpose of conducting the depositions. Defendant asserts that Counselor Thompson's limited appearance is inappropriate, given the court rules, statutes and case law. Further, Defendant asserts that the lengthy conversation he and Mr. Thompson had creates a conflict in which should disqualify him from representing Plaintiff in this proceeding.
In opposition, Counselor Thompson states that he does not remember meeting Defendant and if he did meet Defendant, he would not have had the opportunity to discuss anything with him at the time Defendant claims that they spoke because h e was performing that night. Counselor Thompson explained that he is the lead singer in his band, and he uses the time between performance sets to rest his voice. Moreover, he would not conduct business as an attorney in the time he spends outside of his office.
Counselor Thompson states that although he and Defendant may have crossed paths at some point, since he is a retired NYPD Lieutenant and his band performances are open to the public, he does not remember having a thirty-minute conversation with Defendant about his case. Moreover, Counselor Thompson claims that a check of his office records show that he has never had contact with the Defendant at his office.
In reply, Defendant's attorney advises that Ms. Katsoris recalls Defendant and Counselor Thompson meeting and speaking about his case and will testify to such if called as a witness.
"Whether to disqualify an attorney is a matter which lies within the sound discretion of the court" (Matter of Madris v Oliviera, 97 A.D.3d 823, 825 [2d Dept, 2012]; see Matter of Marvin Q. 45 A.D.3d 852, 853 [2d Dept., 2007]; Olmoz v Town of Fishkill, 258 A.D.2d 447 [2d Dept., 1999]). Given the "significant competing interests inherent in attorney disqualification cases," the Court of Appeals has advised against "mechanical application of blanket rules," in support of a “careful appraisal of the interests involved." (Lyons v Lyons, 50 Misc.3d 876. 878 [Sup Ct. Monroe County 2015]; see also Tekni-Plex. Inc. v Meyner & Landis, 89 N.Y.2d 123,131-132, 674 N.E.2d 663, 651 N.Y.S.2d 954 [1996]. In cases in which a movant seeks to disqualify an attorney, or law firm, the movant has the burden of providing sufficient proof to warrant disqualification (see Gulino v Gulino, 35 A.D.3d 812, 812 [2d Dept 2006]; see also Aryeh v Aryeh, 14 A.D.3d 634, 788 N.Y.S.2d 622 [2005]; Petrossian v Grossman, 219 A.D.2d 587, 588, 631 N.Y.S.2d 187 [1995]).
Longstanding New York Appellate Division case law established the: legal standard for cases involving the disqualification of attorneys. New York courts have reasoned that an attorney must preserve a client's secrets and confidences and avoid even "the appearance of impropriety" (see Nesenoff v Dinerstein & Lesser, P.C, 12 A.D.3d 427, 428, 786 N.Y.S.2d 185 [2d Dept 2004]; Gabel v Gabel, 101 A.D.3d 676, 676, 955 N.Y.S.2d 171 [2d Dept 2012]). However, recent changes to the law have moved the standard to a more fact-specific analysis: which requires the movant to show more than the mere appearance of impropriety.
First, the Rules of Professional Conduct have changed the definition of "confidential information" that makes disqualification under the rules improper if the alleged confidential facts are generally known (see Rules of Professional Conduct [22 NYCRR 1200,0] rule 1.6 [a]; Mayers v Stone Castle Partners, LLC, 126 A.D.3d 1, 7,1 N.Y.S.3d 58 [1st Dept 2015], Second, the matters involved must substantially related " (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9: Cohen v Cohen, 125 A.D.3d 589, 591, 2 N.Y.S.3d 605 [2d Dept 2015].) Third, the Court of Appeals has repeatedly directed that a clear showing of access to confidential facts is required to justify disqualification. (Matter of Sosa v Serrano, 130 A.D.3d 636, 10 N.Y.S.3d 901 [2d Dept 2015]; Jozefik v Jozefik, 89 A.D.3d 1489, 934 N.Y.S.2d 274 [4th Dept 2011]; Gustafson v Dippert, 68 A.D.3d 1678, 891 N.Y.S.2d 842 [4th Dept 2009]; Gulino v Gulino, 35 A.D.3d 812, 826 N.Y.S.2d 903 [2d Dept 2006]; Aryeh v Aryeh, 14 A.D.3d 634, 788 N.Y.S.2d 622 [2d Dept 2005]). Further, the Appellate Division has held that " [a]bsent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney:" Matter of Lovitch v Lovitch, 64 A.D.3d 710, 884 N.Y.S.2d 430 [2d Dept. 2009].)
Defendant brought the instant motion seeking to disqualify Counselor Thompson from representing Plaintiff in this proceeding. Therefore, the burden rests with Defendant to show sufficient proof to support the relief sought. First, Defendant must prove that the type of "confidential information" that warrants disqualification under the rules is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential, (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.6 [a]).
Defendant claims in his affidavit that he had a thirty-minute conversation with Counselor Thompson in a public setting four years ago at a time when he was considering retaining new' counsel to represent him in his matrimonial action. During this conversation, Defendant claims to have shared confidential information with Counselor Thompson about the intricacies of the pending divorce, including the Plaintiff's false filings against Defendant and the "lower court's" adverse rulings. Case law is clear that a"fiduciary relationship existing between lawyer and client extends to a preliminary consultation by a prospective client with a view toward retention of the lawyer, even where actual employment does not arise" (Rose Ocko Found., Inc. v Liebovitz, 155 A.D.2d 426, 427-428 [2d Dept 1989]; see also Seeley v Seeley, supra, at 627; Burton v Burton, 139 A.D.2d 554; Code of Professional Responsibility EC 4-1). However, Defendant only provided a vague idea of the discussion between himself and Counselor Thompson and did not provide sufficient information to substantiate the claims made. It appears Defendant's purported conversation with Counselor Thompson occurred during the pendency of the divorce action. The parties entered a Separation Agreement dated May 24, 2018, and Defendant in the instant action filed for divorce on June 14, 2018; At trial in the divorce action, the court decided issues of custody and support and stated that the issues of equitable distribution and maintenance were addressed in the Separation Agreement which is the subject of this action. Defendant does: not assert that he discussed the issues in the instant action with Counselor Thompson, but states that he discussed the divorce action in which the issues in contention were custody and support. Defendant failed to prove that the nature of the information Defendant allegedly shared with Counselor Thompson Was confidential and of the type that is protected by the attorney-client privilege. However, Defendant plainly claims that he shared confidential information with Counselor Thompson at Mrs. Katsoris' establishment.
Moreover, Defendant conceded that Counselor Thompson is a musician as the lead singer of his. band and was present on the night of question for a musical performance. Counselor Thompson disputes the occurrence of any conversation and claims to not have any recollection of conversing with Defendant because he uses the time between sets to rest his voice, not to conduct business. Counselor Thompson also claims that in his 33 years of practice as an attorney, he has always a formal consultation in his office.
Further, Defendant neither claims that any information he shared with Counselor Thompson is likely to cause embarrassment or be detrimental to his position in the instant plenary action, nor that he requested the information he allegedly shared be kept confidential. Based on the evidence presented, the court cannot find that any potential information Defendant shared with Counselor Thompson is confidential.
It should also be noted that Defendant fails to explain how the alleged confidences regarding the then pending divorce action are substantially related to the instant action, which is a plenary action seeking enforcement of the parties' separation agreement. Notwithstanding that Counselor Thompson did not represent any of the parties in die Divorce action and that the conversation between the two did not even appear to be a consultation, Defendant has failed to prove that the alleged information he claims to have shared is confidential and substantially related to Counselor Thompson's representation in the plenary action.
Since the appearance of impropriety alone is no longer sufficient to require disqualification of an attorney, Defendant must put forth a "clear showing" of Counselor Thompson's access to confidential facts and prove actual prejudice suffered if the requested representation is allowed, or a substantial risk thereof to justify disqualification. As explained above, Defendant only argues that the alleged conversation between Defendant and Counselor Thompson took place because a third party has a clear recollection of witnessing a conversation and is willing to submit an affidavit to that effect. This alone fails to make a clear showing of Counselor Thompson 's access to alleged confidential facts.
In addition, Defendant fails to successfully explain how Counselor Thompson having access to alleged confidential information surrounding the divorce action is prejudicial in the instant plenary action. Defendant failed to establish how he would be prejudiced or what substantial risk exists in Plaintiff s retention of Counselor Thompson as an attorney in this plenary action. Therefore, that branch of the motion which requests an Order disqualifying Counselor Thompson from representing Plaintiff is denied.
The branch of Defendant's motion related to the waiver of Plaintiff s right to depose Defendant was resolved by the court's Order dated June 8, 2023. Depositions of both Plaintiff and Defendant were scheduled for July 11, 2023. In addition, Plaintiff was ordered to inform Defendant's attorney on or before June 30, 2023 whether she intended to depose Defendant. Although Plaintiff communicated her intent to depose Defendant, Plaintiff s intent was frustrated by Defendant's motion to disqualify Plaintiff's attorney. Plaintiff shall notify Defendant of her intent, if any, to depose Defendant on or before August 31, 2023, and Defendant's deposition shall take place on or before September 29, 2023.
Defendant also seeks an order from the Court directing that any attorney Plaintiff retains shall appear in this proceeding and be relieved only by court order. It should be noted that "the right to counsel of one's choice is a jealously-guarded entitlement not readily abridged." (Tischler v Fahnestock & Co., Inc., 23 Misc.3d 384, 393 [Sup Ct, Kings County 2009] quoting Matter of Jason C., 268 A.D.2d 587, 702 N.Y.S.2d 613 [2d Dept 2000]; Feeley v Midas Props,, 199 A.D.2d 238, 604 N.Y.S.2d240 [2d Dept 1993].) While a parties" right to counsel of their choice is not absolute, "any restriction imposed on that right will be carefully scrutinized", and that right "will not yield unless confronted with some overriding competing public interest'' (In re Jason C., 268 A.D.2d 587, 587 [2d Dept 2000] quoting Matter of Abrams [John Anonymous], 62 N.Y.2d 183, 196; see, Prodell v State of New York, 125 A.D.2d 805)).
Defendant notes that Plaintiff has appeared self-represented from the inception of this matter and argues that the court should enjoin her from hiring Counselor Thompson solely for the purposes of representing her for the deposition. The court does not find that Defendant raised sufficient cause to thwart Plaintiff's right retain Counselor Thompson. In addition, parties have a right to retain counsel at any point in litigation. Therefore, this branch of Defendant's motion is denied.
In accordance with the foregoing, it is hereby:
ORDERED that Defendant's Motion (motion sequence no. 9) is denied, and it is further
ORDERED that Defendant's request for an Order disqualifying Plaintiff s Counselor is denied; and it is further
ORDERED that Plaintiff shall inform of her intention to depose Defendant on or before August 31, 2023; and it is further
ORDERED that the deposition of Defendant, if any, shall be conducted on of before September 29, 2023; and it is further
ORDERED that Defendant's request directing that any attorney Plaintiff retains shall appear in this proceeding and be relieved only by court order is denied.
This constitutes the decision and order of the court.