Brooklyn House of Hardware and Locks, Inc. v. Fried

9 A.D.3d 378, 779 N.Y.S.2d 369, 2004 N.Y. App. Div. LEXIS 9693

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 2004
• Status: Published

Opinion

In an action to recover money due on a guarantee, the defendant appeals from an order of the Supreme Court, Rings County (Demarest, J.), dated March 9, 2004, which denied her motion to disqualify the firm of Lehman & Duberman, LLP, from representing the plaintiff.

Ordered that the order is affirmed, with costs.

“Under DR 5-108 (A) (1), a party seeking disqualification of its adversary’s lawyer must prove: (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” (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]). The movant in this case failed to establish the existence of a prior attorney-client relationship between opposing counsel and herself. Accordingly, the Supreme Court properly denied the motion to disqualify. Santucci, J.P., H. Miller, Luciano, Crane and Spolzino, JJ., concur.