| Sessa v Parrotta |
| 2014 NY Slip Op 02921 [116 AD3d 1029] |
| April 30, 2014 |
| Appellate Division, Second Department |
| Joseph M. Sessa, Appellant, v Geraldine Parrotta,Respondent. |
—[*1] Michael Catalanotto, P.C., Nesconset, N.Y., for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Suffolk County (Leo, J.), datedFebruary 19, 2013, as granted that branch of the defendant's motion which was todisqualify the plaintiff's counsel.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and that branch of the defendant's motion which was to disqualify the plaintiff's counselis denied.
In this action, inter alia, for a divorce, the defendant moved to disqualify theplaintiff's counsel, Courten & Villar, PLLC (hereinafter C & V), on the ground that ithad previously represented the defendant in the preparation of a last will and testament.
"[A] party seeking disqualification of [an] adversary's lawyer must prove: (1) theexistence of a prior attorney-client relationship between the moving party and opposingcounsel, (2) that the matters involved in both representations are substantially related,and (3) that the interests of the present client and former client are materially adverse"(Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]).
Here, the defendant failed to meet her burden of establishing the element of asubstantial relationship between the representations. The issues in the present litigationand the subject matter of the prior representation are not substantially related, particularlygiven that under the parties' prenuptial agreement, the validity of which is not at issue,they waived their rights of equitable distribution (see McDade v McDade, 240AD2d 1010, 1010-1011 [1997]; cf. Galanos v Galanos, 20 AD3d 450, 451 [2005]). Thedefendant's conclusory allegations that, in the prior representation, C & V gained accessto confidential material substantially related to the present litigation were insufficient todetermine the nature of the confidential information allegedly obtained or that there is areasonable probability that such information would be disclosed during the presentlitigation (see Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 638 [1998];Calandriello v Calandriello,32 AD3d 450, 452 [2006]; Medical Capital Corp. v MRI Global Imaging, Inc., 27 AD3d427, 428 [2006]; Andre vCity of New York, 19 AD3d 340, 341 [2005]; Wissler v Ashkinazy, 299AD2d 352, 352-353 [2002]; Olmoz v Town of Fishkill, 258 AD2d 447, 448[1999]).[*2]
Accordingly, the Supreme Court should havedenied that branch of the defendant's motion which was to disqualify the plaintiff'scounsel. Skelos, J.P., Leventhal, Chambers and Maltese, JJ., concur.