| Matter of Astor Rhinebeck Assoc., LLC v Town of Rhinebeck |
| 2011 NY Slip Op 05694 [85 AD3d 1160] |
| June 28, 2011 |
| Appellate Division, Second Department |
| In the Matter of Astor Rhinebeck Associates, LLC,Respondent, v Town of Rhinebeck et al., Appellants. |
—[*1] Jacobowitz & Gubits, LLP, Walden, N.Y. (Elizabeth K. Cassidy of counsel), forrespondent.
In a hybrid proceeding pursuant to CPLR article 78 to review a determination of the TownBoard of the Town of Rhinebeck dated December 29, 2009, which adopted the ComprehensivePlan and Zoning Law and action, inter alia, for a judgment declaring that the ComprehensivePlan and Zoning Law are null and void, the appeal is from an order of the Supreme Court,Dutchess County (Brands, J.), dated September 15, 2010, which granted the petitioner/plaintiff'smotion to disqualify the attorney for the Town of Rhinebeck and the Town Board of the Town ofRhinebeck.
Ordered that the order is affirmed, with costs.
The disqualification of an attorney is a matter which rests within the sound discretion of themotion court (see Falk v Gallo, 73AD3d 685 [2010]; Campolongo vCampolongo, 2 AD3d 476 [2003]; Olmoz v Town of Fishkill, 258 AD2d 447[1999]). Although "[a] party's entitlement to be represented in ongoing litigation by counsel ofhis or her own choosing is a valued right which should not be abridged," such right will notsupersede a clear showing that disqualification is warranted (Matter of Marvin Q., 45 AD3d 852, 853 [2007], quotingCampolongo v Campolongo, 2 AD3d at 476; see Horn v Municipal Info. Servs.,282 AD2d 712 [2001]). Under the circumstances here, the Supreme Court providently exercisedits discretion in granting the petitioner/plaintiff's motion to disqualify the appellants' attorney(see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123 [1996]; M.A.C. Duff, Inc. v ASMAC, LLC, 61AD3d 828, 828-830 [2009]; Columbus Constr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d383 [2005]; Moccia v Weisfogel, 253 AD2d 800, 801 [1998]). Moreover, contrary tothe appellants' contention, the petitioner/plaintiff is not barred from moving to disqualify theirattorney by the doctrine of laches (cf. Natiello v Natiello, 209 AD2d 389 [1994]). Sincethe interests of the petitioner/plaintiff and the appellants did not become materially adverse untilthe commencement of the present litigation, the petitioner/plaintiff could not have soughtdisqualification at an earlier time (seeScafuri v DeMaso, 71 AD3d 755, 756 [2010]; see generally Tekni-Plex, Inc. vMeyner & Landis, 89 NY2d at 131). Therefore, there is no basis upon which to conclude thatthe petitioner/plaintiff inexcusably waited too long to seek disqualification of the appellants'attorney. Skelos, J.P., Leventhal, Austin and Sgroi, JJ., concur.