| Halberstam v Halberstam |
| 2014 NY Slip Op 07627 [122 AD3d 679] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Esther Halberstam, Appellant, v MichaelHalberstam, Respondent. |
Eric A. Schwartz, P.C., New York, N.Y., for appellant.
In an action for divorce and ancillary relief, the plaintiff appeals, as limited her brief,from so much of an order of the Supreme Court, Kings County (Adams, J.), dated June24, 2013, as granted that branch of the defendant's motion which was to disqualify theplaintiff's counsel.
Ordered that the order is affirmed insofar as appealed from, without costs ordisbursements.
The plaintiff commenced this action for divorce and ancillary relief against thedefendant. The plaintiff was represented by Eric A. Schwartz, who is the parties'brother-in-law and is married to the plaintiff's sister. During the pendency of the action,the defendant moved, inter alia, to disqualify Schwartz from representing the plaintiff,alleging that prior to the commencement of the action he had discussed confidentialinformation about his finances and other personal matters with Schwartz. The defendantfurther alleged that these discussions took place after Schwartz assured him that he couldnot represent either party in any future litigation because of his personal relationship withboth of them. The Supreme Court granted that branch of the defendant's motion whichwas to disqualify Schwartz.
The disqualification of an attorney is a matter that rests within the sound discretionof the court (see Matter of Townof Oyster Bay v 55 Motor Ave. Co., LLC, 109 AD3d 549, 550 [2013]; Albert Jacobs, LLP v Parker,94 AD3d 919 [2012]; Columbus Constr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20AD3d 383 [2005]; Nationwide Assoc. v Targee St. Internal Medicine Group,303 AD2d 728 [2003]). A party's right to be represented by counsel of his or her ownchoosing is a valued right which will not be superseded absent a clear showing thatdisqualification is warranted (see Mediaceja v Davidov, 119 AD3d 911 [2014]; Zutler v Drivershield Corp., 15AD3d 397 [2005]). The moving party bears the burden of showing thatdisqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634 [2005]). Any doubts as tothe existence of a conflict of interest must be resolved in favor of disqualification (seeSperr v Gordon L. Seaman, Inc., 284 AD2d 449, 450 [2001]). Moreover, even whenan actual conflict of interest may not exist, disqualification may be warranted based on amere appearance of impropriety (see Albert Jacobs, LLP v Parker, 94 AD3d at919; Burton v Burton, 139 AD2d 554 [1988]; Sirianni v Tomlinson, 133AD2d 391 [1987]).
Here, contrary to the plaintiff's contention, the evidence submitted on the motion[*2]demonstrated that the discussions between Schwartzand the defendant included matters related to the divorce, and took place prior to thedefendant becoming aware that Schwartz would be representing the plaintiff in the case.The evidence further supported the reasonable probability that confidential informationwas shared by the defendant with Schwartz, based on his belief that Schwartz could notrepresent either party. Accordingly, based on the appearance of impropriety,disqualification was warranted (see Albert Jacobs, LLP v Parker, 94 AD3d at919; Burton v Burton, 139 AD2d 554 [1988]; Sirianni v Tomlinson, 133AD2d 391 [1987]).
The plaintiff's remaining contentions are without merit.
Therefore, the Supreme Court providently exercised its discretion in granting thatbranch of the defendant's motion which was to disqualify Schwartz. Dickerson, J.P.,Leventhal, Sgroi and LaSalle, JJ., concur.