| Gordon v Ifeanyichukwu Chuba Orakwue Obiakor |
| 2014 NY Slip Op 03232 [117 AD3d 681] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Barbara Gordon, Appellant, et al.,Plaintiff, v Ifeanyichukwu Chuba Orakwue Obiakor, Also Known as Ifeanyi C.Obiakor, Respondent, et al., Defendant. |
Scott G. Cerbin, Brooklyn, N.Y. , for appellant.
Mordente Law Firm LLC, Fresh Meadows, N.Y. (Anthony R. Mordente of counsel),for respondent.
In an action, inter alia, for an accounting, the plaintiff Barbara Gordon appeals (1), aslimited by her notice of appeal and brief, from so much of an order of the SupremeCourt, Kings County (Pfau, J.), dated July 11, 2012, as denied that branch of her motionwhich was to disqualify the defendants' counsel, and (2), as limited by her notice ofappeal and brief, from so much of an order of the same court dated November 2, 2012, asdenied those branches of her motion which were for leave to renew and reargue thatbranch of her prior motion which was to disqualify the defendants' counsel.
Ordered that the appeal from the order dated November 2, 2012, is dismissed; and itis further,
Ordered that the order dated July 11, 2012, is reversed insofar as appealed from, onthe facts and in the exercise of discretion, and that branch of the motion of the plaintiffBarbara Gordon which was to disqualify the defendants' counsel is granted; and it isfurther,
Ordered that one bill of costs is awarded to the appellant.
The appeal so much of the order dated November 2, 2012, as denied that branch ofthe motion of the plaintiff Barbara Gordon which was for leave to reargue must bedismissed, as no appeal lies from an order denying reargument. In light of ourdetermination on the appeal from the order dated July 11, 2012, we dismiss, as academic,the appeal from so much of the order dated November 2, 2012, as denied that branch ofGordon's motion which was for leave to renew.
Where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked inlitigation, courts "are not constrained to read the rules literally or effectuate the intent ofthe drafters, but look to the rules as guidelines to be applied with due regard for thebroad range of interests at [*2]stake" (Niesig v TeamI, 76 NY2d 363, 369-370 [1990]; see S & S Hotel Ventures Ltd. Partnershipv 777 S. H. Corp., 69 NY2d 437, 443 [1987]; Midwood Chayim Aruchim Dialysis Assoc., Inc. v BrooklynDialysis, LLC, 82 AD3d 1177, 1178 [2011]). It is the Supreme Court'sresponsibility to balance the competing interests, and "[t]he disqualification of anattorney is a matter that rests within the sound discretion of the Supreme Court" (Falk v Gallo, 73 AD3d685, 685 [2010]; see Cardinale v Golinello, 43 NY2d 288, 292 [1977];Matter of Erlanger [Erlanger], 20 NY2d 778, 779 [1967]; Midwood ChayimAruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 82 AD3d at 1178; Nationscredit Fin. Servs. Corp. vTurcios, 41 AD3d 802, 802 [2007]; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344[2005]; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277 [1984]).
Here, prior to the commencement of this action, the defendant's attorney hadprovided legal advice to both the appellant, Barbara Gordon, and the defendant in theircapacity as business partners and members of several limited liability companies. Therewas a substantial relationship between the involvement of the defendants' attorney in theformation of those limited liability companies, and his involvement as general counsel tothose limited liability companies in connection with the instant action for an accounting.In his capacity as general counsel, the defendant's attorney was in a position to receiverelevant confidences regarding several of those limited liability companies, in which theplaintiff's interests are now adverse to the defendant's interests. Thus, under thecircumstances of this case, the Supreme Court improvidently exercised its discretion indenying the appellant's motion to disqualify the defendants' attorney (see e.g. Campbell v McKeon,75 AD3d 479, 480 [2010]; Flores v Willard J. Price Assoc., LLC, 20 AD3dat 344-345; Morris v Morris, 306 AD2d 449, 452 [2003]; Bianchi vMille, 266 AD2d 419, 420 [1999]; Matter of Greenberg [Madison Cabinet& Interiors], 206 AD2d 963, 965 [1994]; Matter of Fleet v Pulsar Constr.Corp., 143 AD2d 187, 189 [1988]; Wood v Beacon Factors Corp., 137AD2d 752, 753 [1988]; Schmidt v Magnetic Head Corp., 101 AD2d at 279).
To the extent that the appellant raises an argument on appeal regarding that branch ofher motion which was to vacate an award of costs that was allegedly improperly includedin a judgment entered June 1, 2012, that branch of her motion was not addressed by theSupreme Court and, thus, remains pending and undecided (see Katz v Katz, 68AD2d 536, 542-543 [1979]).
In light of the foregoing, we need not address the appellant's remaining contentions.Balkin, J.P., Dickerson, Roman and Miller, JJ., concur.