| Matter of Town of Oyster Bay v 55 Motor Ave. Co.,LLC |
| 2013 NY Slip Op 05636 [109 AD3d 549] |
| August 14, 2013 |
| Appellate Division, Second Department |
| In the Matter of Town of Oyster Bay,Respondent, v 55 Motor Avenue Co., LLC, et al., Appellants. (And AnotherTitle.) |
—[*1] Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (Joseph E.Macy and Steven Brock of counsel), for respondent.
In two related condemnation proceedings, 55 Motor Avenue Co., LLC, CubbiesProperties, Inc., Jefry Rosmarin, and J. Jay Tanenbaum appeal from an order of theSupreme Court, Nassau County (Adams, J.), dated August 23, 2012, which denied theirmotion to disqualify Saul R. Fenchel and Berkman, Henoch, Peterson, Peddy & Fenchel,P.C., from the continued representation of the Town of Oyster Bay.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the motion of 55 Motor Avenue Co., LLC, Cubbies Properties, Inc., JefryRosmarin, and J. Jay Tanenbaum to disqualify Saul R. Fenchel and Berkman, Henoch,Peterson, Peddy & Fenchel, P.C., from the continued representation of the Town ofOyster Bay is granted.
"The disqualification of an attorney is a matter that rests within the sound discretionof the court" (Columbus Constr.Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d 383, 383 [2005]; see Albert Jacobs, LLP vParker, 94 AD3d 919, 919 [2012]). A party seeking disqualification of itsadversary's counsel based on counsel's purported prior representation of that party mustestablish: "(1) the existence of a prior attorney-client relationship between the movingparty and opposing counsel, (2) that the matters involved in both representations aresubstantially related, and (3) that the interests of the present client and former client arematerially adverse" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131[1996]; see Gabel v Gabel,101 AD3d 676, 676 [2012]; Calandriello v Calandriello, 32 AD3d 450, 451 [2006];Columbus Constr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d at 383). "Aparty's entitlement to be represented in ongoing litigation by counsel of [its] ownchoosing is a valued right which should not be abridged absent a clear showing thatdisqualification is warranted" (Matter of Dream Weaver Realty, Inc.[Poritzky—DeName], 70 AD3d 941, 943 [2010]; see Gabel vGabel, 101 AD3d at 677).[*2]
Here, the appellants established that the attorneyfor the Town of Oyster Bay is Berkman, Henoch, Peterson, Peddy & Fenchel, P.C.(hereinafter Berkman Henoch). The appellants further established that Saul Fenchel, whobecame a member of Berkman Henoch in 2010, had a prior attorney-client relationshipwith the appellants, that the matters involved in Fenchel's representation of the appellantswere substantially related to the matters involved in Fenchel's representation of theTown, and that the interests of the appellants and the Town were materially adverse.Further, regardless of whether Fenchel actually obtained and disseminated confidentialinformation in connection with his former representation of the appellants, they are"entitled to freedom from apprehension and to certainty that [their] interests will not beprejudiced" due to Fenchel's representation of the Town in the related condemnationproceedings (Cardinale v Golinello, 43 NY2d 288, 296 [1977]; see Columbus Constr. Co., Inc. vPetrillo Bldrs. Supply Corp., 20 AD3d 383, 384 [2005]; Nationwide Assoc.v Targee St. Internal Medicine Group, 303 AD2d 728, 729 [2003]). Accordingly, theSupreme Court improvidently exercised its discretion in denying that branch of theappellants' motion which was to disqualify Fenchel from representing the Town in theseproceedings (see Albert Jacobs,LLP v Parker, 94 AD3d 919 [2012]; M.A.C. Duff, Inc. v ASMAC, LLC, 61 AD3d 828,828-830 [2009]; ColumbusConstr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d 383, 384 [2005];Moccia v Weisfogel, 253 AD2d 800, 801 [1998]).
In addition, the Supreme Court improvidently exercised its discretion in denying thatbranch of the appellants' motion which sought to disqualify Berkman Henoch fromrepresenting the Town in these proceedings. There is a rebuttable presumption that"where an attorney working in a law firm is disqualified from undertaking a subsequentrepresentation opposing a former client, all the attorneys in that firm are likewiseprecluded from such representation" (Kassis v Teacher's Ins. & Annuity Assn.,93 NY2d 611, 616 [1999]). That presumption may be rebutted by proof that "anyinformation acquired by the disqualified lawyer is unlikely to be significant or material inthe [subject] litigation" (Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d at617). Proof must also be presented that the law firm properly screened the disqualifiedlawyer from dissemination and receipt of information subject to the attorney-clientprivilege (id.). Here, the Town failed to present any evidence that Fenchel did notacquire information that was significant or material in the subject litigation or thatBerkman Henoch took steps to screen Fenchel to protect the dissemination of any suchinformation by him to the other attorneys at the firm. Consequently, Berkman Henochmust also be disqualified from representing the Town in these proceedings (seeKassis v Teacher's Ins. & Annuity Assn., 93 NY2d at 618-619; Matter of Haberman v Zoning Bd.of Appeals of City of Long Beach, 85 AD3d 915, 916 [2011]). Rivera, J.P.,Dillon, Dickerson and Austin, JJ., concur.