Mediaceja v Davidov

Mediaceja v Davidov 2014 NY Slip Op 05521 Decided on July 30, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 30, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
WILLIAM F. MASTRO, J.P.
THOMAS A. DICKERSON
SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.
2013-03722
(Index No. 101753/10)

[*1]Magdeleydis Mediaceja, respondent,

v

Adi Davidov, et al., defendants-appellants; Shaub, Ahmuty, Citrin & Spratt, LLP, nonparty-appellant.

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Robert M. Ortiz of counsel), nonparty-appellant pro se and for defendants-appellants.

Trolman, Glaser & Lichtman, P.C., New York, N.Y. (Michael T. Altman of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendants and the nonparty law firm, Shaub, Ahmuty, Citrin & Spratt, LLP, appeal from an order of the Supreme Court, Richmond County (McMahon, J.), dated March 18, 2013, which granted the plaintiff's motion to disqualify the nonparty law firm from representing the defendants in this action.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion to disqualify the nonparty law firm, Shaub, Ahmuty, Citrin & Spratt, LLP, from representing the defendants in this action is denied.

A party's right to be represented "by counsel of its choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Zutler v Drivershield Corp., 15 AD3d 397, 397; S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp, 69 NY2d 437, 443; Dominguez v Community Health Plan of Suffolk, 284 AD2d 294, 294). A party seeking to disqualify an attorney or a law firm for an opposing party on the ground of conflict of interest has the burden of demonstrating (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131; Solow v Grace & Co., 83 NY2d 303, 308; Sessa v Parrotta, 116 AD3d 1029, 1029; Gabel v Gabel, 101 AD3d 676; see also Falk v Gallo, 73 AD3d 685). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to disqualify the defendants' attorneys because of an alleged conflict of interest, since the plaintiff failed to establish any of the three foregoing elements.

MASTRO, J.P., DICKERSON, HINDS-RADIX and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court