| Lake v Kaleida Health |
| 2009 NY Slip Op 02420 [60 AD3d 1469] |
| March 27, 2009 |
| Appellate Division, Fourth Department |
| Dale Lake et al., Respondents, v Kaleida Health, Doing Business asMillard Fillmore Gates Hospital, et al., Appellants, et al.,Defendants. |
—[*1] Stamm, Reynolds & Stamm, Williamsville (Bradley J. Stamm of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered May14, 2008 in a medical malpractice action. The order granted the motion of plaintiffs and directedGibson, McAskill & Crosby, LLP to withdraw as counsel for defendants Kaleida Health, doingbusiness as Millard Fillmore Gates Hospital, and Kathryn Felice, R.N.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the motion is denied.
Memorandum: Supreme Court abused its discretion in granting plaintiffs' motion seeking todisqualify Gibson, McAskill & Crosby, LLP from representing defendants-appellants (hereafter,defendants) based on an alleged conflict of interest. Even assuming, arguendo, that plaintiffshave standing to bring the motion (see generally Maxon v Woods Oviatt Gilman LLP, 45AD3d 1376 [2007]), we conclude that they failed to meet their burden of making "a clearshowing that disqualification is warranted" (Olmoz v Town of Fishkill, 258 AD2d 447,447 [1999]; see generally S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69NY2d 437, 445 [1987]). Moreover, the motion should have been denied on the ground thatplaintiffs were aware or should have been aware of the facts underlying the alleged conflict ofinterest for more than two years before bringing the motion, and "to allow disqualification at thisadvanced stage of [the] litigation would severely prejudice defendant[s]" (McDade vMcDade, 240 AD2d 1010, 1011 [1997]). Present—Hurlbutt, J.P., Smith, Fahey, Greenand Pine, JJ.