Guerin v. Guerin

Appellate Division of the Supreme Court of New York

Guerin v. Guerin

210 A.D.2d 784, 620 N.Y.S.2d 523, 1994 N.Y. App. Div. LEXIS 13042

Appellate Division of the Supreme Court of the State of New York·Decided December 22, 1994·Published·Cited by 1 cases

Opinion

Mercure, J.

Appeal from an order of the Family Court of Essex County (Dawson, J.), entered March 24, 1994, which granted respondent’s application to disqualify petitioner’s counsel.

As a threshold matter, the order appealed from was not a dispositional order from which an appeal can be taken as of right (Family Ct Act § 1112 [a]). Rather than dismiss the appeal, however, we shall grant permission to appeal sua sponte (see, Matter of Maryanne PP. v Richard QQ., 192 AD2d 747, 748, n). Based upon conflicting factual averments in a series of unsworn letters by respondent and petitioner’s counsel, Family Court issued an order disqualifying petitioner’s counsel, finding that respondent "provided intimate details of the matrimonial-custody dispute” to the counsel in a January 3, 1994 telephone conversation. In the absence of an evidentiary hearing to adduce competent evidence and resolve conflicts therein, this was error (see, U. S. Risk Managers v Gershuny, 141 AD2d 389, 390).

Mikoll, J. P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Essex County for further proceedings not inconsistent with this Court’s decision.

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Mercure, J.

Appeal from an order of the Family Court of Essex County (Dawson, J.), entered March 24, 1994, which granted respondent’s application to disqualify petitioner’s counsel.

As a threshold matter, the order appealed from was not a dispositional order from which an appeal can be taken as of right (Family Ct Act § 1112 [a]). Rather than dismiss the appeal, however, we shall grant permission to appeal sua sponte (see, Matter of Maryanne PP. v Richard QQ., 192 AD2d 747, 748, n). Based upon conflicting factual averments in a series of unsworn letters by respondent and petitioner’s counsel, Family Court issued an order disqualifying petitioner’s counsel, finding that respondent "provided intimate details of the matrimonial-custody dispute” to the counsel in a January 3, 1994 telephone conversation. In the absence of an evidentiary hearing to adduce competent evidence and resolve conflicts therein, this was error (see, U. S. Risk Managers v Gershuny, 141 AD2d 389, 390).

Mikoll, J. P., Crew III, Casey and Yesawich Jr., JJ., concur. Ordered that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Essex County for further proceedings not inconsistent with this Court’s decision.

Guerin v. Guerin, 210 A.D.2d 784, 620 N.Y.S.2d 523, 1994 N.Y. App. Div. LEXIS 13042 (N.Y. Ct. App. 1994).

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Opinion

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