Bison Plumbing City, Inc. v. Benderson

281 A.D.2d 955, 722 N.Y.S.2d 660, 2001 N.Y. App. Div. LEXIS 2816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2001
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: “A motion to disqualify another party’s attorney is addressed to the sound discretion of the trial court” (Juergens v Schanman, 182 AD2d 740, 741). Supreme Court properly exercised its discretion in denying defendants’ motion to disqualify plaintiffs attorney based upon the failure of defendants to meet their burden of presenting sufficient proof to warrant that relief (see, Petrossian v Grossman, 219 AD2d 587, 588). Defendants failed to establish that an attorney-client relationship exists between them and plaintiff’s attorney or his former law firm based upon the law firm’s representation of a partnership in which one of defendant trustees is a partner (see, Brooklyn Navy Yard Co-generation Partners v PMNC, 254 AD2d 447; Kushner v Herman, 215 AD2d 633). Further, assuming, arguendo, that the law firm is disqualified from representing plaintiff, we conclude that defendants failed to demonstrate that the law firm’s disqualification is imputed to plaintiffs attorney pursuant to Code of Professional Responsibility DR 5-105 (d) (22 NYCRR 1200.24 [d]) based upon his status as “special counsel” to the law firm (see, Shelton v Shelton, 151 AD2d 659; Gray v Memorial Med. Ctr., 855 F Supp 377, 379-380). (Appeal from Order of Supreme Court, Erie County, NeMoyer, J. — Disqualify Counsel.) Present — Pigott, Jr., P. J., Green, Wisner, Kehoe and Burns, JJ.