| Wells Fargo Bank, N.A. v Caro |
| 2011 NY Slip Op 01835 [82 AD3d 880] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Wells Fargo Bank, N.A., as Trustee, Respondent, v ChaseCaro, Appellant, et al., Defendants. |
—[*1] DelBello Donnellan Weingarten Wise & Wiederkehr, LLP, White Plains, N.Y. (Frank J.Haupel and Michael J. Schwarz of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Chase Caro appeals, as limited by hisbrief, from so much of (1) an order of the Supreme Court, Westchester County (Liebowitz, J.),entered January 4, 2010, as denied those branches of his motion which were to disqualify theplaintiff's counsel and to strike the amended complaint, and (2) an order of the same courtentered July 1, 2010, as denied that branch of his motion which was for leave to renew and, as,upon reargument, adhered to the original determination in the order dated January 4, 2010,denying that branch of his motion which was to disqualify the plaintiff's counsel.
Ordered that the appeal from so much of the order entered January 4, 2010, as denied thatbranch of the motion of the defendant Chase Caro which was to disqualify the plaintiff's counselis dismissed, as that portion of the order was superseded by the order entered July 1, 2010, madeupon reargument; and it is further,
Ordered that the order entered January 4, 2010, is affirmed insofar as reviewed; and it isfurther,
Ordered that the order entered July 1, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
In this action to foreclose a mortgage, the defendant Chase Caro (hereinafter the defendant)moved to disqualify the plaintiff's substituted law firm, DelBello Donnellan Weingarten Wise &Wiederkehr, LLP (hereinafter the firm) on the ground that he previously disclosed informationpertaining to this action to attorney Brandon R. Sall, his long-term acquaintance, in an effort tosolicit legal advice on the matter. Sall is "of counsel" to the firm. After the firm was substitutedas the plaintiff's counsel, the defendant moved, inter alia, to disqualify the firm based on hisalleged prior disclosures to Sall, and to strike the amended complaint, asserting that it was taintedby an alleged conflict.[*2]
"The 'disqualification of an attorney is a matter whichrests within the sound discretion of the court and will not be overturned absent a showing ofabuse' " (Mondello v Mondello, 118 AD2d 549, 550 [1986], quoting Schmidt vMagnetic Head Corp., 101 AD2d 268, 277 [1984]; see A.F.C. Enters., Inc. v New York City School Constr. Auth., 33AD3d 736 [2006]; Calandriello vCalandriello, 32 AD3d 450, 451 [2006]). "A party seeking to disqualify an adversary'slawyer under Code of Professional Responsibility DR 5-108 (a) (1) (22 NYCRR 1200.27 [a] [1])must prove (1) the existence of a prior attorney-client relationship between the moving party andopposing counsel, (2) that the matters involved in both representations are substantially related,and (3) that the interests of the present client and [the] former client are materially adverse"(Calandriello v Calandriello, 32 AD3d at 451 [internal quotation marks omitted]; seeTekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]; M.A.C. Duff, Inc. v ASMAC, LLC, 61AD3d 828, 829-830 [2009]; Columbus Constr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d383, 383 [2005]; Matter of Epstein, 255 AD2d 582, 583 [1998]).
Here, even assuming that the defendant established the existence of a prior attorney-clientrelationship with Sall, the record establishes that Sall performed no work for the firm inconnection with this action, and that he merely sublet office space from the firm for his separateand distinct law firm. The defendant failed to demonstrate that there "was a prior attorney-clientrelationship between himself and the law firm representing the [plaintiff] which would subjecthim to the risk 'of being opposed by an attorney who might have had access to his confidences' "(Calandriello v Calandriello, 32 AD3d at 452, quoting Nemet v Nemet, 112AD2d 359, 360 [1985]). Accordingly, under the circumstances presented here, the SupremeCourt properly denied that branch of the defendant's motion which was to strike the amendedcomplaint based on the alleged conflict and, upon reargument, adhered to its originaldetermination denying that branch of the defendant's motion which was to disqualify the firmbased on Sall's "of counsel" status (seeCalandriello v Calandriello, 32 AD3d 450 [2006]; Shelton v Shelton, 151 AD2d659 [1989]; compare Cardinale v Golinello, 43 NY2d 288 [1977]; Nemet vNemet, 112 AD2d 359 [1985]).
"A motion for leave to renew shall be based upon new facts not offered on the prior motionthat would change the prior determination, and shall contain reasonable justification for thefailure to present such facts on the prior motion" (Marrero v Crystal Nails, 77 AD3d 798, 799 [2010]; see Countrywide Home Loans Servicing,LP v Albert, 78 AD3d 985, 986 [2010]; CPLR 2221 [e]). Here, the Supreme Courtproperly denied that branch of the defendant's motion which was for leave to renew, as theallegedly "new facts" offered would not have changed the prior determination (CPLR 2221 [e][2]). Dillon, J.P., Florio, Dickerson and Cohen, JJ., concur.