| Matter of Rovner v Rantzer |
| 2016 NY Slip Op 08870 [145 AD3d 1016] |
| December 28, 2016 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Marc Rovner,Appellant, v Debra Rantzer, Respondent. |
Schlissel Ostrow Karabatos, PLLC, Garden City, NY (Elena Karabatos, HillaryReinharz, and Lisa R. Schoenfeld of counsel), for appellant.
Anthony A. Capetola, Williston Park, NY, for respondent (no brief filed).
Roberta Nancy Kaufman, Floral Park, NY, attorney for the child.
Appeal, by permission, by the father from an order of the Family Court, NassauCounty (Felice J. Muraca, J.) dated May 12, 2016. The order denied the father's motionto disqualify the mother's counsel.
Ordered that the order is reversed, on the facts and in the exercise of discretion, withcosts, and the father's motion to disqualify the mother's counsel is granted.
The parties are the parents of one child. In 2012, the father commenced a proceedingpursuant to Family Court Act article 8. In 2012, the father also commenced a proceedingpursuant to Family Court Act article 6, seeking to modify a prior order of custody of theFamily Court.
In 2015, the mother hired an attorney who is married to the former Family CourtJudge who presided over these proceedings. That Family Court Judge, inter alia, issued atemporary order of custody and visitation, and also conducted two in camera interviewswith the subject child. In late 2015, the father moved to disqualify the mother's counsel.The Family Court denied the motion, and the father appeals.
"[T]he disqualification of an attorney is a matter which rests within the sounddiscretion of the court. A party's entitlement to be represented in ongoing litigation bycounsel of his or her own choosing is a valued right which should not be abridged absenta clear showing that disqualification is warranted, and the movant bears the burden onthe motion" (Campolongo vCampolongo, 2 AD3d 476, 476 [2003] [citations omitted]; see Matter of Nenninger vKelly, 140 AD3d 961, 963 [2016]; Matter of Aaron W. v Shannon W., 96 AD3d 960, 962[2012]). "However, the right to be represented by counsel of one's own choosing 'will notsupersede a clear showing that disqualification is warranted' " (Gjoni v Swan Club, Inc., 134AD3d 896, 897 [2015], quoting Matter of Marvin Q., 45 AD3d [*2]852, 853 [2007]; see Scopin v Goolsby, 88 AD3d 782, 784 [2011]).
The Family Court improvidently exercised its discretion in denying the father'smotion to disqualify the mother's attorney in light of, inter alia, the unrefuted statementby the attorney for the child that the mother's current attorney was present inside thechambers of the former Family Court Judge who presided over these proceedings onvarious occasions when they were being heard and the fact that the former Family CourtJudge conducted two in camera interviews with the child (see Halberstam v Halberstam,122 AD3d 679, 679-680 [2014]; Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]; see also Matter of Town of OysterBay v 55 Motor Ave. Co., LLC, 109 AD3d 549, 550-551 [2013]; Matter of Haberman v Zoning Bd.of Appeals of City of Long Beach, 85 AD3d 915 [2011]). Chambers, J.P.,Roman, Miller and Barros, JJ., concur.