| Sharifi-Nistanak v Coccia |
| 2014 NY Slip Op 05318 [119 AD3d 765] |
| July 16, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Mohammad Nasir Sharifi-Nistanak et al.,Respondents, v Lyudmila Coccia, Appellant. |
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Keri A.Wehrheim of counsel), for appellant.
Gruenberg Kelly Della, Ronkonkoma, N.Y. (Zachary M. Beriloff of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appealsfrom an order of the Supreme Court, Suffolk County (Farneti, J.), dated April 11, 2013,which denied her motion to disqualify the law firm of Gruenberg Kelly Della fromrepresenting the plaintiffs.
Ordered that the order is affirmed, with costs.
On May 4, 2011, the plaintiff Mohammad Nasir Sharifi-Nistanak (hereinafter theinjured plaintiff), and his wife suing derivatively, commenced this action to recoverdamages for personal injuries he allegedly sustained in an automobile accident with thedefendant. At that time, the law firm of Russo, Apoznanski & Tambasco(hereinafter the Russo firm) was assigned by the defendant's insurance company todefend her in this action. Anthony Ciaccio, then associated with the Russo firm, signedthe verifications dated June 28, 2011, and August 9, 2011, that were appended to thedefendant's answer and bill of particulars, respectively. Ciaccio also was responsible forthe preparation, inter alia, of certain discovery demands.
On February 24, 2012, Ciaccio accepted an offer of employment at the law firm ofGruenberg Kelly Della (hereinafter the Gruenberg firm), which represented the plaintiffsin this action against the defendant, Ciaccio's former client. Two months later, thedefendant moved to disqualify the Gruenberg firm from representing the plaintiffs. TheSupreme Court denied the motion. We affirm.
While generally, a party seeking to disqualify an opponent's attorney "must prove: (1)the existence of a prior attorney-client relationship between the moving party andopposing counsel, (2) that the matters involved in both representations are substantiallyrelated, and (3) that the interests of the present client and former client are materiallyadverse" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]),"no presumption of disqualification will arise if either the moving party fails to make anyshowing of a risk that the attorney changing firms acquired any client confidences in [hisor her] prior employment (see, Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d631, 638) or the nonmoving party disproves that the attorney had any opportunity toacquire confidential information in the former employment" (Kassis v Teacher's Ins.& Annuity Assn., 93 [*2]NY2d 611, 617[1999]).
Here, the defendant failed to make any showing that Ciaccio acquired any clientconfidences during his prior employment. Furthermore, in Ciaccio's affirmation inopposition to the motion, he averred that he has "no independent recollection" of signingthe verifications or of any of the other documents which he described as "pro-forma" and"computer generated," that were served on the defendant's behalf by the Russo firm. Healso averred that he has no "independent recollection" of having spoken to Coccia whilepreparing these documents or of sending her certain form letters from the Russo firm inwhich his name, but not his signature, appears, or of communicating with the defendantwhatsoever. While Ciaccio was employed at the Russo firm, he reportedly had a"continually changing case load of over one hundred and fifty files." Moreover, Ciacciofurther averred that he did not have any knowledge regarding the facts of the presentaction and that it had "come to [his] attention," through the instant motion to disqualifythe Gruenberg firm, that he had previously "worked on the instant matter for a briefperiod of time" while at the Russo firm.
In light of the foregoing, as well as the proof of the efforts made at the Gruenbergfirm to eliminate any involvement by Ciaccio in the instant action (see Kassis vTeacher's Ins. & Annuity Assn., 93 NY2d at 615, 617, 619), we discern noimprovident exercise of discretion by the Supreme Court in denying the defendant'smotion to disqualify the Gruenberg firm from representing the plaintiffs.
Accordingly, the Supreme Court properly denied the defendant's motion to disqualifythe Gruenberg firm from representing the plaintiffs. Rivera, J.P., Hall, Sgroi and Maltese,JJ., concur.