Becker v. Perla

Appellate Division of the Supreme Court of New York

Becker v. Perla

125 A.D.3d 575, 5 N.Y.S.3d 34

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 26, 2015

Docket14360 651575/13

StatusPublished

Cited by5 cases

This text of 125 A.D.3d 575 (Becker v. Perla) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Becker v. Perla, 125 A.D.3d 575, 5 N.Y.S.3d 34 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 12, 2014, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to disqualify plaintiffs’ counsel and sua sponte ordered that plaintiff Ronny Becker could not be represented by the same counsel as the other plaintiffs, unanimously reversed, on the law, without costs, the motion to disqualify denied, and the sua sponte order vacated.

Although plaintiffs concede that their lawyer represented some of the defendants in a prior matter, and that the parties’ interests are now directly adverse, disqualification is not required. The present and prior matters are not substantially related, and plaintiffs attorney did not obtain confidential information from the defendants during the prior matter (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). In order to show that the matters are “substantially related,” defendants must show that the issues in the matters are identical or essentially the same (Lightning Park v Wise Lerman & Katz, 197 AD2d 52, 55 [1st Dept 1994]). Defendants failed to make that showing. The prior matter involved the enforcement of a loan against a third party, and the present matter involves defendants’ alleged diversion of monies intended for and earned by a project in the Dominican Republic. Further, the financial information involving plaintiff Becker shared by some of the defendants with the attorney during the prior matter was not confidential, since it was disclosed to Becker or otherwise known to him.

The court erred in sua sponte directing that Becker must have separate counsel from the other plaintiffs, as defendants never requested such relief and the relief is not supported by the parties’ motion papers (see Carter v Johnson, 84 AD3d 1141, *576 1142 [2d Dept 2011]). The court may, however, allow the parties to submit papers on the issue.

Concur — Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.

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Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered on or about March 12, 2014, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to disqualify plaintiffs’ counsel and sua sponte ordered that plaintiff Ronny Becker could not be represented by the same counsel as the other plaintiffs, unanimously reversed, on the law, without costs, the motion to disqualify denied, and the sua sponte order vacated.

Although plaintiffs concede that their lawyer represented some of the defendants in a prior matter, and that the parties’ interests are now directly adverse, disqualification is not required. The present and prior matters are not substantially related, and plaintiffs attorney did not obtain confidential information from the defendants during the prior matter (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). In order to show that the matters are “substantially related,” defendants must show that the issues in the matters are identical or essentially the same (Lightning Park v Wise Lerman & Katz, 197 AD2d 52, 55 [1st Dept 1994]). Defendants failed to make that showing. The prior matter involved the enforcement of a loan against a third party, and the present matter involves defendants’ alleged diversion of monies intended for and earned by a project in the Dominican Republic. Further, the financial information involving plaintiff Becker shared by some of the defendants with the attorney during the prior matter was not confidential, since it was disclosed to Becker or otherwise known to him.

The court erred in sua sponte directing that Becker must have separate counsel from the other plaintiffs, as defendants never requested such relief and the relief is not supported by the parties’ motion papers (see Carter v Johnson, 84 AD3d 1141, *576 1142 [2d Dept 2011]). The court may, however, allow the parties to submit papers on the issue.

Concur — Gonzalez, P.J., Mazzarelli, Acosta, Moskowitz, DeGrasse, JJ.

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Bluebook (online)

125 A.D.3d 575, 5 N.Y.S.3d 34, Counsel Stack Legal Research, https://law.counselstack.com/opinion/becker-v-perla-nyappdiv-2015.

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