| Gjoni v Swan Club, Inc. |
| 2015 NY Slip Op 09252 [134 AD3d 896] |
| December 16, 2015 |
| Appellate Division, Second Department |
[*1]
| Miradin Gjoni, Respondent, v The Swan Club,Inc., et al., Appellants. |
Franklin, Gringer & Cohen, P.C., Garden City, NY (Joshua Marcus of counsel),for appellants.
Law Office of Vincent R. Fontana, P.C., Garden City, NY, for respondent.
In an action, inter alia, to recover damages for employment discrimination on thebasis of sex in violation of Executive Law § 296, the defendants appealfrom an order of the Supreme Court, Nassau County (J. Murphy, J.), entered November14, 2014, which denied their motion to disqualify Vincent R. Fontana from the continuedrepresentation of the plaintiff in this action.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the defendants' motion to disqualify Vincent R. Fontana from the continuedrepresentation of the plaintiff in this action is granted.
The plaintiff was employed by the defendant The Swan Club, Inc. (hereinafter theclub), from April 2001 until he was terminated in March 2014. In 2004, a femalecoworker of the plaintiff filed a complaint against the club with the New York StateDivision of Human Rights. She alleged, inter alia, that the plaintiff made offensiveremarks to her regarding her sex and race, that she reported his behavior to her superiorsand that, in retaliation, her work hours were reduced. Vincent R. Fontana, who was then"of counsel" to a Nassau County law firm, represented the club in its defense against thecomplaint. In July 2014, the plaintiff, now represented by Fontana, the principal of TheLaw Office of Vincent R. Fontana, P.C., commenced this action against the club and itsprincipals—Gregory Trunz, Robert Trunz, and Warren Trunz (hereinaftercollectively the defendants). The plaintiff alleged, inter alia, that he was subjected to ahostile work environment in violation of Executive Law § 296 based on sexand gender and was wrongfully terminated. After joinder of issue, the defendants movedpursuant to the Rules of Professional Conduct (22 NYCRR 1200.0) to disqualify Fontanafrom representing the plaintiff in this action based upon Fontana's prior representation ofthe club. The Supreme Court denied the motion and the defendants appeal.
"The disqualification of an attorney is a matter that rests within the sound discretionof the court" (Albert Jacobs,LLP v Parker, 94 AD3d 919, 919 [2012]). "A party seeking disqualification ofits adversary's counsel based on counsel's purported prior representation of that partymust establish '(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' " (Matter of Town [*2]of Oyster Bay v55 Motor Ave. Co., LLC, 109 AD3d 549, 550 [2013], quoting Tekni-Plex,Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). " 'A party'sentitlement to be represented in ongoing litigation by counsel of [his or her] ownchoosing is a valued right which should not be abridged absent a clear showing thatdisqualification is warranted' " (Matter of Town of Oyster Bay v 55 MotorAve. Co., LLC, 109 AD3d at 550, quoting Matter of Dream Weaver Realty, Inc.[Poritzky—DeName], 70 AD3d 941, 943 [2010]). However, the right tobe represented by counsel of one's own choosing "will not supersede a clear showing thatdisqualification is warranted" (Matter of Marvin Q., 45 AD3d 852, 853 [2007]; see Scopin v Goolsby, 88AD3d 782, 784 [2011]). Any doubts as to the existence of a conflict of interest mustbe resolved in favor of disqualification so as to avoid even the appearance of impropriety(see Cohen v Cohen, 125AD3d 589, 590 [2015]; Halberstam v Halberstam, 122 AD3d 679 [2014]). "Due tothe 'significant competing interests inherent in attorney disqualification cases,' however,the Court of Appeals has advised against 'mechanical application of blanket rules,' infavor of a 'careful appraisal of the interests involved' " (Gabel v Gabel, 101 AD3d676, 676-677 [2012], quoting Tekni-Plex, Inc. v Meyner & Landis, 89NY2d at 131).
Here, the defendants established that Fontana, while "of counsel" to another firmseveral years earlier, had a prior attorney-client relationship with the club, that the issuesinvolved in Fontana's prior representation of the club were substantially related to theissues involved in Fontana's current representation of the plaintiff, and that the interestsof the plaintiff and the defendants were materially adverse (see Rules ofProfessional Conduct [22 NYCRR 1200.0] rule 1.9; Matter of Town of Oyster Bay v55 Motor Ave. Co., LLC, 109 AD3d at 550-551). Further, although Fontanacontends that he has no independent recollection of the facts of the prior representationand, in effect, that whatever information he obtained during the prior representationwould not be relevant to the issues in this matter, the defendants are " 'entitled tofreedom from apprehension and to certainty that [their] interests will not beprejudiced' " due to Fontana's current representation of the plaintiff (Matterof Town of Oyster Bay v 55 Motor Ave. Co., LLC, 109 AD3d at 551, quotingCardinale v Golinello, 43 NY2d 288, 296 [1977]).
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination.
Accordingly, the Supreme Court improvidently exercised its discretion in denyingthe defendants' motion to disqualify Vincent R. Fontana from the continuedrepresentation of the plaintiff in this action. Dillon, J.P., Chambers, Cohen andHinds-Radix, JJ., concur.