CNY Mechanical Associates, Inc. v. Fidelity & Guaranty Insurance

Appellate Division of the Supreme Court of New York

CNY Mechanical Associates, Inc. v. Fidelity & Guaranty Insurance

229 A.D.2d 950, 646 N.Y.S.2d 483, 1996 N.Y. App. Div. LEXIS 8987

Appellate Division of the Supreme Court of the State of New York·Decided July 12, 1996·Published·Cited by 2 cases

Opinion

—Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in disqualifying J. William Ernstrom and the law firm of Ernstrom & Dreste from representing defendant. "A party seeking [951]*951to disqualify an attorney or a law firm, must establish (1) the existence of a prior attorney-client relationship and (2) that the former and current representations are both adverse and substantially related” (Solow v Grace & Co., 83 NY2d 303, 308). Plaintiff failed to show that the former and current representations are substantially related. Further, there is no proof that Ernstrom or the law firm acquired any confidential information during the prior representation of plaintiff by the predecessor law firm of Ernstrom & Estes. That prior representation consisted of about 30 minutes of consultation regarding the withdrawal of a bid for construction work on an unrelated project. Two associates of the predecessor firm represented plaintiff, and those associates have never worked for Ernstrom & Dreste. No work was performed by Ernstrom on that matter. Because there is no realistic possibility that confidences were disclosed, application of the presumption of disqualification is not warranted (see, Solow v Grace & Co., supra, at 313-314). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Disqualify Law Firm.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.

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—Order unanimously reversed on the law with costs and motion denied. Memorandum: Supreme Court erred in disqualifying J. William Ernstrom and the law firm of Ernstrom & Dreste from representing defendant. "A party seeking [951]*951to disqualify an attorney or a law firm, must establish (1) the existence of a prior attorney-client relationship and (2) that the former and current representations are both adverse and substantially related” (Solow v Grace & Co., 83 NY2d 303, 308). Plaintiff failed to show that the former and current representations are substantially related. Further, there is no proof that Ernstrom or the law firm acquired any confidential information during the prior representation of plaintiff by the predecessor law firm of Ernstrom & Estes. That prior representation consisted of about 30 minutes of consultation regarding the withdrawal of a bid for construction work on an unrelated project. Two associates of the predecessor firm represented plaintiff, and those associates have never worked for Ernstrom & Dreste. No work was performed by Ernstrom on that matter. Because there is no realistic possibility that confidences were disclosed, application of the presumption of disqualification is not warranted (see, Solow v Grace & Co., supra, at 313-314). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Disqualify Law Firm.) Present—Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.

CNY Mechanical Associates, Inc. v. Fidelity & Guaranty Insurance, 229 A.D.2d 950, 646 N.Y.S.2d 483, 1996 N.Y. App. Div. LEXIS 8987 (N.Y. Ct. App. 1996).

Pincite

229 A.D.2d 950 (CNY Mechanical Associates, Inc. v. Fidelity & Guaranty Insurance) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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