Cohen v. Cohen

125 A.D.3d 589, 2 N.Y.S.3d 605

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2015
• Docket: 2013-00646
• Status: Published

Opinions

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Janowitz, J.), dated September 26, 2012, as denied his motion to disqualify the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP, from representing the defendant in this action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiffs motion is granted.

In this action for a divorce and ancillary relief, the plaintiff moved to disqualify the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Einiger, LLP (hereinafter the law firm), from representing the defendant. In support of his motion, the plaintiff asserted that, in or about November 2010, he met with Steve Eisman, an attorney from the law firm, for a consultation, as he was considering divorce at that time. The defendant disputes the plaintiffs claim in this regard. According to Eisman, although the plaintiff did schedule an appointment to meet with him, the plaintiff canceled the meeting. It is undisputed, however, that the plaintiffs brother met with Eisman in July 2010. The plaintiff claims, and his brother avers, that, at this meeting, the plaintiffs brother shared with Eisman detailed confidential information concerning various businesses the plaintiff and his brother own and in which they share common interests. Eisman acknowledges that he discussed with the plaintiffs brother the “surface details” concerning, among other things, the plaintiffs brother’s employment.

The disqualification of an attorney is generally a matter resting within the sound discretion of the court (see Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2012]). However, “ ‘doubts as to the existence of a conflict of interest must be resolved in favor of disqualification so as to avoid even the appearance of impropriety’ ” (Mineola Auto., Inc. v Millbrook Props., Ltd.., 118 AD3d 680, 680-681 [2014], quoting Seeley v Seeley, 129 AD2d 625, 627 [1987]). Here, the Supreme Court should have granted the plaintiffs motion to disqualify the law firm from representing the defendant in this action. Under the particular circumstances of this case, given the undisputed evidence of the consultation between Eisman and the plaintiffs brother, as well as the nature of the matters disclosed and the resulting substantial risk of prejudice, the very appearance of a conflict of interest was alone sufficient to warrant disqualification of the law firm as a matter of law without an evidentiary hearing (see Galanos v Galanos, 20 AD3d 450, 452 [2005]; Sirianni v Tomlinson, 133 AD2d 391, 392 [1987]), notwithstanding the existence of a factual dispute as to whether Eisman met with the plaintiff.

Dickerson, J.P., Sgroi, and LaSalle, JJ., concur.