| Matter of Janczewski v Janczewski |
| 2019 NY Slip Op 01072 [169 AD3d 795] |
| February 13, 2019 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Lori Janczewski, Appellant, v AdamJanczewski, Respondent. |
Del Atwell, East Hampton, NY, for appellant.
Ray, Mitev & Associates, LLP, Miller Place, NY (Vesselin Mitev of counsel), forrespondent.
In a proceeding pursuant to Family Court Act article 8, the wife appeals from an order of theFamily Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated January 29, 2018. Theorder, after a fact-finding hearing, and upon the granting of the husband's motion made at the close ofthe wife's case to dismiss that branch of the petition which was based on the allegation that the husbandhad committed acts on March 2, 2016, constituting a family offense for failure to make a prima faciecase, dismissed that branch of the petition and vacated a temporary order of protection against thehusband.
Ordered that the order is reversed, on the law, on the facts, and in the exercise of discretion,without costs or disbursements, the wife's oral application to disqualify the husband's counsel and hislaw firm is granted, the temporary order of protection against the husband is reinstated, that branch ofthe petition which was based on the allegation that the husband had committed acts on March 2, 2016,constituting the family offense of assault in the third degree is reinstated, and the matter is remitted to theFamily Court, Suffolk County, for a new fact-finding hearing and determination of that branch of thepetition, before a different referee, following an appropriate stay of proceedings pursuant to CPLR 321(c).
On July 28, 2016, the wife filed a family offense petition against her husband, alleging that he hadcommitted acts of domestic violence against her on March 2, 2016, and at other times. The FamilyCourt issued a temporary order of protection against the husband dated July 28, 2016. At thefact-finding hearing, at the close of the wife's case, the court granted the husband's motion to dismissthat branch of the petition which related to the incident that occurred on March 2, 2016, for failure tomake a prima facie case. On a prior appeal, this Court concluded that the court erred in determiningthat the wife failed to establish a prima facie case of assault in the third degree with respect to theincident alleged to have occurred on March 2, 2016, and remitted the matter to the Family Court,Suffolk County, for a new fact-finding hearing and determination of that branch of the petition (see Matter of Janczewski v Janczewski, 152AD3d 595 [2017]).
On December 15, 2017, at the outset of the new fact-finding hearing, the wife made an applicationto disqualify the husband's counsel and his law firm based upon a conflict of interest. The Family Courtorally denied the application. Thereafter, at the close of the wife's case, the Family Court again grantedthe husband's motion to dismiss that branch of the petition relating to the March 2, 2016 incident,finding that the wife's testimony lacked credibility.
The Family Court improvidently exercised its discretion in denying the wife's oral application todisqualify the husband's counsel and his law firm. "A party seeking disqualification of its adversary'scounsel based on counsel's purported prior representation of that party must establish (1) the existenceof a prior attorney-client relationship between the moving party and opposing counsel, (2) that thematters involved in both representations are substantially related, and (3) that the interests of the presentclient and former client are materially adverse" (Gjoni v Swan Club, Inc., 134 AD3d 896, 897 [2015] [internal quotationmarks omitted]; see Falk v Chittenden,11 NY3d 73, 78 [2008]; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131[1996]). "A party's entitlement 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 that disqualification iswarranted, and the movant bears the burden on the motion" (Matter of Rovner v Rantzer, 145 AD3d 1016, 1016 [2016] [internalquotation marks omitted]). However, doubts as to the existence of a conflict of interest are resolved infavor of disqualification in order to avoid even the appearance of impropriety (see Deerin v Ocean Rich Foods, LLC, 158AD3d 603, 608 [2018]; Gjoni v Swan Club, Inc., 134 AD3d at 897; Matter of Fleet vPulsar Constr. Corp., 143 AD2d 187, 189 [1988]).
Here, the wife submitted unrefuted evidence that an associate with the law firm that had previouslyrepresented her in the pending divorce action, and with whom she had discussed details of the March2, 2016, incident that is the focal point of this proceeding, became associated on February 13, 2017,with the law firm representing the husband in both the divorce action and this proceeding. The wife'sshowing satisfied all three of the relevant factors, giving rise to an irrebuttable presumption ofdisqualification (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131; see also Falk v Chittenden, 11 NY3d73 [2008]; Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611 [1999];Matter of Rovner v Rantzer, 145 AD3d at 1017; Halberstam v Halberstam, 122 AD3d 679, 679-680 [2014]; Albert Jacobs, LLP v Parker, 94 AD3d919, 919 [2012]). Accordingly, based on the appearance of impropriety, disqualification waswarranted (see Halberstam v Halberstam, 122 AD3d at 680; Albert Jacobs, LLP vParker, 94 AD3d at 919; Wall St. Assoc. v Brodsky, 227 AD2d 301, 302 [1996]).
Since there must be a new fact-finding hearing and determination, we further note that the FamilyCourt erred in determining that the wife failed to establish a prima facie case that the husband hadcommitted acts constituting the family offense of assault in the third degree on March 2, 2016." 'In determining a motion to dismiss for failure to establish a prima facie case, the evidencemust be accepted as true and given the benefit of every reasonable inference which may be drawntherefrom . . . The question of credibility is irrelevant, and should not beconsidered' " (Matter of Ramroop vRamsagar, 74 AD3d 1208, 1209 [2010], quoting Gonzalez v Gonzalez, 262 AD2d281, 282 [1999]; see Matter of Janczewski v Janczewski, 152 AD3d at 597; Matter of Mack v Richardson, 150 AD3d740 [2017]; Matter of Bacchus vMcGregor, 147 AD3d 1049 [2017]; Matter of Oakes v Oakes, 127 AD3d 1093 [2015]; Matter of Brown v Brown, 127 AD3d969 [2015]). Here, the court again failed to properly apply this standard. Viewing the wife'sevidence in a light most favorable to her, and accepting such evidence as true, without consideringmatters of credibility, the wife established a prima facie case that the husband had committed actsconstituting the family offense of assault in the third degree on March 2, 2016 (see Penal Law§ 120.00 [1]; Matter of Janczewski v Janczewski, 152 AD3d at 597; Matterof Ramroop v Ramsagar, 74 AD3d at 1209).
In light of the foregoing, we remit the matter to the Family Court, Suffolk County, for a newfact-finding hearing and determination of that branch of the petition which was based on the allegationthat the husband had committed acts on March 2, 2016, constituting the family offense of assault in thethird degree, before a different referee. Rivera, J.P., Chambers, Hinds-Radix and Maltese, JJ.,concur.