Guess?, Inc. v. Nakash

157 A.D.2d 550, 550 N.Y.S.2d 14, 1990 N.Y. App. Div. LEXIS 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1990
• Status: Published

Opinion

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 14, 1988, which denied the motion to disqualify petitioner’s New York counsel, unanimously affirmed, without costs.

This proceeding pursuant to CPLR 3103 (c) is ancillary to a pending plenary action between the parties in California Superior Court, Los Angeles County. Disqualification has been sought herein on the basis of alleged improprieties in petitioner’s counsel’s conduct which led to receipt of documents in the custody of the United States Attorney for the Southern District of New York. Such documents had been seized by that Federal officer from respondent Jordache Enterprises, Inc. pursuant to a warrant and in the course of a criminal Grand Jury investigation of respondents. The California trial court was presented with a similar question on appellants’ motion to disqualify petitioner’s California counsel, who participated in the inspection and receipt of such documents. That court denied the disqualification motion, and petitioner’s California counsel proceeded to participate in the first stage of a bifurcated trial of the substantive California action. This New York proceeding is now dormant, other than this appeal, and further proceedings herein will be conducted only in the event the parties seek additional assistance from the New York courts in taking further discovery here on issues remaining in the California litigation. In this posture, there is no possibility that petitioner’s New York counsel may derive any advantage in further New York proceedings from its exposure to the documents held by the United States Attorney. Thus, the crucial predicate of disqualification in Matter of Weinberg (129 AD2d 126 [1st Dept], rearg and lv denied 132 AD2d 190 [1st Dept]) is utterly lacking here (Matter of Kochovos, 140 AD2d 180 [1st Dept]). The question of whether petitioner’s trial counsel derived an unfair advantage remains one for the California courts. Concur Kupferman, J. P., Ross, Milonas, Rosenberger and Ellerin, JJ.