| Kelleher v Adams |
| 2017 NY Slip Op 01542 [148 AD3d 692] |
| March 1, 2017 |
| Appellate Division, Second Department |
[*1]
| John C. Kelleher, Jr., et al., Plaintiffs, v Jeffrey M.Adams, Esq., et al., Respondents, et al., Defendant. Beattie Padovano, LLC, NonpartyAppellant. |
Beattie Padovano, LLC, New York, NY (Patrick J. Monaghan, Jr., and Martin R. Kafafian ofcounsel), nonparty-appellant pro se.
In an action to recover damages for legal malpractice, nonparty Beattie Padovano, LLC,appeals, as limited by its brief, from so much of an order of the Supreme Court, RocklandCounty (Loehr, J.), dated February 13, 2015, as denied that branch of the plaintiff's motion whichwas for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, and granted thatbranch of the motion of the defendants Jeffrey M. Adams and The Adams Law Firm, P.C., whichwas to disqualify Beattie Padovano, LLC, as the plaintiffs' counsel.
Ordered that the appeal from so much of the order as denied that branch of the plaintiffs'motion which was for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, isdismissed, as the nonparty-appellant is not aggrieved thereby (see CPLR 5511); and it isfurther,
Ordered that the order is reversed insofar as reviewed, on the facts and in the exercise ofdiscretion, and that branch of the motion of the defendants Jeffrey M. Adams and The AdamsLaw Firm, P.C., which was to disqualify Beattie Padovano, LLC, as the plaintiffs' counsel isdenied.
The defendants Jeffrey M. Adams and The Adams Law Firm, P.C. (hereinafter together theAdams defendants), moved, inter alia, to disqualify the nonparty-appellant, Beattie Padovano,LLC, from representing the plaintiffs on the ground that it had violated various rules of the NewYork Rules of Professional Conduct. As relevant to this appeal, the Supreme Court granted thatbranch of the Adams defendants' motion which sought disqualification. We reverse insofar asreviewed.
" 'A party's entitlement to be represented in ongoing litigation by counsel of his orher own choosing is a valued right which should not be abridged absent a clear showing thatdisqualification is warranted. While the right to choose one's counsel is not absolute,disqualification of legal counsel during litigation implicates not only the ethics of the professionbut also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized.The party seeking to disqualify a law firm or an attorney bears the burden to show sufficientproof to [*2]warrant such a determination' " (Hele Asset, LLC v S.E.E. RealtyAssoc., 106 AD3d 692, 693 [2013], quoting Gulino v Gulino, 35 AD3d 812, 812 [2006]; see S & SHotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443-445 [1987])." 'Whether to disqualify an attorney is a matter which lies within the sound discretion ofthe court' " (Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d at 693, quotingMatter of Madris v Oliviera, 97AD3d 823, 825 [2012]; see Matterof Marvin Q., 45 AD3d 852, 853 [2007]; Olmoz v Town of Fishkill, 258 AD2d447 [1999]).
Here, the Supreme Court improvidently exercised its discretion in granting that branch of theAdams defendants' motion which was to disqualify the plaintiffs' attorney, inasmuch as there wasinsufficient proof to demonstrate that disqualification was warranted.
Accordingly, the Supreme Court should have denied that branch of the Adams defendants'motion which was to disqualify the nonparty-appellant from representing the plaintiffs. Balkin,J.P., Hall, LaSalle and Barros, JJ., concur.