Matter of Armstrong

[*1] Matter of Armstrong 2012 NY Slip Op 50059(U) Decided on January 18, 2012 Sur Ct, Bronx County Holzman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 18, 2012
Sur Ct, Bronx County

In the Matter of Estate of Cheryl Armstrong, Also Known as Cheryl Ann Armstrong, Deceased



614-A/2005



Lisa M. Stockham, movant (objectant)

Percy A. Randall, Esq., for Lezlie Dicie Stockham Hall, respondent on the motion and objectant in accounting proceeding

Reddy, Levy & Ziffer, P.C., (Brian A. Cahalane, Esq., of counsel) for Bronx County Public Administrator

Charlotte Lee, Esq., guardian ad litem for unknown distributees

Eric T. Schneiderman, Attorney General of the State of New York by Lisa Barbieri, Esq., Assistant Attorney General, Charities Bureau

Lee L. Holzman, J.

In this proceeding to judicially settle the account of the Public Administrator, one objectant, an alleged first cousin of the decedent, moves, pro se, to: (1) disqualify the attorney for another objectant based upon allegations that the attorney was criminally charged with numerous felonies; and, (2) dismiss the objections filed by that attorney on behalf of the other objectant. The attorney opposes the motion asserting, inter alia, that he pleaded guilty to a misdemeanor so there is no basis for his disqualification, and there is no other basis to dismiss the objections.

The movant alleges, inter alia, that the attorney was involved in a fraud that used stolen identities to illegally obtain mortgages, and that the attorney's co-conspirators in that fraud are the same persons as the attorney's "affiliates" who had a first option to facilitate the sale of the decedent's real property. In support of her motion, the movant attaches: (1) a district attorney press release describing the alleged fraud and listing the attorney as a defendant charged in the fraud; (2) a New York State Unified Court System website printout of the case detailing the criminal action [*2]against the attorney; and, (3) a bill of particulars from the underlying criminal action.

In opposition to this motion, the attorney admits he represented a buyer in a real estate closing wherein the buyer committed identity theft, but he avers that because the buyer presented appropriate identification and the bank approved the identification at the closing, he had no reason to suspect the buyer was committing identity theft. The attorney notes that, although he was charged with numerous felonies, he pleaded guilty only to criminal facilitation in the 4th degree, a misdemeanor, and although there are disciplinary charges against him pending in the Appellate Division, Second Department, to date, he has not been suspended or removed from the practice of law in the State of New York or any other state. Finally, he notes that the offense to which he pleaded guilty is not one for which an automatic disbarment or suspension would result, and he is not affiliated with any real estate broker who was retained to facilitate the sale of the decedent's property.

The disqualification of an attorney is an "extraordinary measure" (People v Day, 131 Misc 2d 211, 213 [1986]). Disqualification of an attorney during litigation implicates not only the ethics of the profession, but also the substantive rights of the litigants, as it denies to those litigants the right to representation by the attorneys of their choice (see S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 443 [1987]; see also Rosen v Rosen, 5 Misc 3d 1031 [A], 2003 NY Slip Op 51736 [U] [2003]). Although the right to counsel of one's choice is not absolute, any restrictions thereon will be carefully scrutinized and will be overridden only where a competing, compelling public policy reason exists (see S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 443).

Here, the sole basis for the motion is that the attorney was charged with several felonies relating to a mortgage fraud scheme; however, this alone is an insufficient basis to justify depriving the other objectant of the services of her counsel of choice since the objectant's attorney pleaded guilty only to a misdemeanor and is not presently suspended or disbarred from the practice of law (see Judiciary Law § 90 [2], [4]; see also Matter of Silberman, 62 AD3d 61 [2009]). In light of the fact that the New York State legislature has chosen not to automatically disbar an attorney convicted of a misdemeanor (see Judiciary Law § 90 [2]), this court finds no compelling public policy reason to disqualify the objectant's attorney based solely on a misdemeanor conviction, where he has not been disbarred and no disciplinary sanctions have been imposed on him to date.

Consequently, that branch of the movant's motion requesting the disqualification and removal of the objectant's attorney is denied. There being no other reason given to dismiss the objections, the remaining branch of the motion is also denied. This decision constitutes the order of the court denying the motion and the Chief Clerk is directed to mail a copy of it to all parties who appeared in the proceeding.

SURROGATE