| Mediaceja v Davidov |
| 2014 NY Slip Op 05521 [119 AD3d 911] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Magdeleydis Mediaceja, Respondent, v AdiDavidov et al., Appellants. Shaub, Ahmuty, Citrin & Spratt, LLP, NonpartyAppellant. |
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simoneand Robert M. Ortiz of counsel), nonparty appellant pro se and fordefendants-appellants.
Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman ofcounsel), for respondent.
In an action to recover damages for medical malpractice, the defendants and thenonparty law firm, Shaub, Ahmuty, Citrin & Spratt, LLP, appeal from an order ofthe Supreme Court, Richmond County (McMahon, J.), dated March 18, 2013, whichgranted the plaintiff's motion to disqualify the nonparty law firm from representing thedefendants in this action.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion todisqualify the nonparty law firm, Shaub, Ahmuty, Citrin & Spratt, LLP, fromrepresenting the defendants in this action is denied.
A party's right to be represented "by counsel of its choosing is a valued right whichshould not be abridged absent a clear showing that disqualification is warranted" (Zutler v Drivershield Corp., 15AD3d 397, 397 [2005]; S & S Hotel Ventures Ltd. Partnership v 777 S. H.Corp., 69 NY2d 437, 443 [1987]; Dominguez v Community Health Plan ofSuffolk, 284 AD2d 294, 294 [2001]). A party seeking to disqualify an attorney or alaw firm for an opposing party on the ground of conflict of interest has the burden ofdemonstrating (1) the existence of a prior attorney-client relationship between themoving party and opposing counsel, (2) that the matters involved in both representationsare substantially related, and (3) that the interests of the present client and former clientare materially adverse (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d123, 131 [1996]; Solow v Grace & Co., 83 NY2d 303, 308 [1994]; Sessa v Parrotta, 116 AD3d1029, 1029 [2014]; Gabel vGabel, 101 AD3d 676 [2012]; see also Falk v Gallo, 73 AD3d 685 [2010]). Here, theSupreme Court improvidently exercised its discretion in granting the plaintiff's motion todisqualify the defendants' attorneys because of an alleged conflict of interest, since theplaintiff failed to establish any of the three foregoing elements. Mastro, J.P., Dickerson,Hinds-Radix and Duffy, JJ., concur.