| Gabel v Gabel |
| 2012 NY Slip Op 08281 [101 AD3d 676] |
| December 5, 2012 |
| Appellate Division, Second Department |
| Dennis Gabel, Appellant, v Blanche Gabel,Respondent. |
—[*1]
In an action, inter alia, for a divorce and ancillary relief, the plaintiff appeals, as limited byhis 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 inthe exercise of discretion, with costs, and the defendant's motion to disqualify the plaintiff'scounsel is denied.
In this action, the defendant moved to disqualify the plaintiff's counsel on the ground thatcounsel had previously represented the defendant in connection with her formation of acorporation. The Supreme Court granted the motion.
"[A] party seeking disqualification of its adversary's lawyer must prove: (1) the existence of aprior attorney-client relationship between the moving party and opposing counsel, (2) that thematters involved in both representations are substantially related, and (3) that the interests of thepresent client and former client are materially adverse" (Tekni-Plex, Inc. v Meyner &Landis, 89 NY2d 123, 131 [1996]; see Falk v Chittenden, 11 NY3d 73, 78 [2008]; Solow v Grace& Co., 83 NY2d 303, 308 [1994]). Due to the "significant competing interests inherent inattorney disqualification cases," however, the Court of Appeals has advised against "mechanicalapplication of blanket rules," in favor of a "careful appraisal of the interests involved"(Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131, 132). In that respect, " '[a] party'sentitlement to be represented in ongoing litigation by counsel of his or her own choosing is avalued right which should not be abridged absent a clear showing that disqualification iswarranted' " (Matter of Dream WeaverRealty, Inc. [Poritzky—DeName], 70 AD3d 941, 943 [2010], quoting Aryeh v Aryeh, 14 AD3d 634, 634[2005]; see Goldman v Goldman,66 AD3d 641 [2009]).
Here, the defendant failed to show that the prior representation was substantially related tothe current representation. Specifically, the defendant did not argue, and there are no facts in therecord to support a finding, that the prior representation concerned any confidential informationregarding the value of the corporation (see Business Corporation Law §§402, 403) or that the attorney was provided with any information that is not contained in thecorporate filing itself. Further, the defendant refused to provide the plaintiff with discoveryconcerning the corporation, contending that the corporation was "closed" and that the defendantnever realized any profits from [*2]it. Under the particularcircumstances of this case, there is nothing to suggest an appearance of impropriety concerningthe attorney's representation of the plaintiff in the divorce action and, therefore, the defendant'smotion for disqualification should have been denied (see Matter of Homola, 234 AD2d295, 295-296 [1996]; see also Bloom vSt. Paul Travelers Cos., Inc., 24 AD3d 584, 585 [2005]). Skelos, J.P., Balkin, Dickersonand Hinds-Radix, JJ., concur.