562 Eglinton, Inc. v. Merlo

277 A.D.2d 1027, 716 N.Y.S.2d 228, 2000 N.Y. App. Div. LEXIS 11516

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 2000
• Status: Published

Opinion

—Order unanimously affirmed'without costs. Memorandum: Supreme Court properly granted plaintiffs’ cross motion to disqualify the law firm representing defendant Samuel Merlo from further representation of Merlo in this action (see, Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131, rearg denied 89 NY2d 917). The law firm previously represented plaintiffs in connection with a residential development project, and the issues involved therein are substantially related to the subject matter of this declaratory judgment action (see, Press v Lozier, Inc., 239 AD2d 879). Whether the law firm obtained “any confidential information in connection with that employment is not determinative” (Press v Lozier, Inc., supra). Plaintiffs are entitled to certainty that their interests will not be prejudiced based on that prior representation (see, Reid Petroleum Corp. v Boller’s Auto Sales & Serv., 248 AD2d 1016; Press v Lozier, Inc., supra). The court also properly denied Merlo’s cross motion for partial summary judgment without prejudice to renew. “Where pertinent facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant and may be revealed through pretrial discovery, summary judgment should be denied” (Shellberry v Albright, 262 AD2d 942). (Appeal from Order of Supreme Court, Monroe County, Barry, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Green, Hurlbutt, Scudder and Balio, JJ.