Kelleher v. Adams

Appellate Division of the Supreme Court of New York

Kelleher v. Adams

2017 NY Slip Op 1542, 148 A.D.3d 692, 47 N.Y.S.3d 732

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 1, 2017

Docket2015-03990

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 1542 (Kelleher v. Adams) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelleher v. Adams, 2017 NY Slip Op 1542, 148 A.D.3d 692, 47 N.Y.S.3d 732 (N.Y. Ct. App. 2017).

Pincite

Opinion

In an action to recover damages for legal malpractice, nonparty Beattie Padovano,, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated February 13, 2015, as denied that branch of the plaintiff’s motion which was for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, and granted that branch of the motion of the defendants Jeffrey M. Adams and The Adams Law Firm, P.C., which was to disqualify Beat-tie Padovano, LLC, as the plaintiffs’ counsel.

Ordered that the appeal from so much of the order as denied that branch of the plaintiffs’ motion which was for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, is dismissed, as the nonparty-appellant is not aggrieved thereby (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as reviewed, on the facts and in the exercise of discretion, and that branch of the motion of the defendants Jeffrey M. Adams and The Adams Law Firm, PC., which was to disqualify Beattie Padovano, LLC, as the plaintiffs’ counsel is denied.

The defendants Jeffrey M. Adams and The Adams Law Firm, PC. (hereinafter together the Adams defendants), moved, inter alia, to disqualify the nonparty-appellant, Beattie Padovano, LLC, from representing the plaintiffs on the ground that it had violated various rules of the New York Rules of Professional Conduct. As relevant to this appeal, the Supreme Court granted that branch of the Adams defendants’ motion which sought disqualification. We reverse insofar as reviewed.

“ ‘A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one’s counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination’ ” (Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d 692, 693 [2013], quoting Gulino *693 v Gulino, 35 AD3d 812, 812 [2006]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443-445 [1987]). “ ‘Whether to disqualify an attorney is a matter which lies within the sound discretion of the court’ ” (Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d at 693, quoting Matter of Madris v Oliviera, 97 AD3d 823, 825 [2012]; see Matter of Marvin Q., 45 AD3d 852, 853 [2007]; Olmoz v Town of Fishkill, 258 AD2d 447 [1999]).

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the Adams defendants’ motion which was to disqualify the plaintiffs’ attorney, inasmuch as there was insufficient proof to demonstrate that disqualification was warranted.

Accordingly, the Supreme Court should have denied that branch of the Adams defendants’ motion which was to disqualify the nonparty-appellant from representing the plaintiffs.

Balkin, J.P., Hall, LaSalle and Barros, JJ., concur.

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In an action to recover damages for legal malpractice, nonparty Beattie Padovano,, LLC, appeals, as limited by its brief, from so much of an order of the Supreme Court, Rockland County (Loehr, J.), dated February 13, 2015, as denied that branch of the plaintiff’s motion which was for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, and granted that branch of the motion of the defendants Jeffrey M. Adams and The Adams Law Firm, P.C., which was to disqualify Beat-tie Padovano, LLC, as the plaintiffs’ counsel.

Ordered that the appeal from so much of the order as denied that branch of the plaintiffs’ motion which was for leave to depose Sheri Ann Pochat, also known as Sheri Ann Cook, is dismissed, as the nonparty-appellant is not aggrieved thereby (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as reviewed, on the facts and in the exercise of discretion, and that branch of the motion of the defendants Jeffrey M. Adams and The Adams Law Firm, PC., which was to disqualify Beattie Padovano, LLC, as the plaintiffs’ counsel is denied.

The defendants Jeffrey M. Adams and The Adams Law Firm, PC. (hereinafter together the Adams defendants), moved, inter alia, to disqualify the nonparty-appellant, Beattie Padovano, LLC, from representing the plaintiffs on the ground that it had violated various rules of the New York Rules of Professional Conduct. As relevant to this appeal, the Supreme Court granted that branch of the Adams defendants’ motion which sought disqualification. We reverse insofar as reviewed.

“ ‘A party’s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted. While the right to choose one’s counsel is not absolute, disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties’ substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination’ ” (Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d 692, 693 [2013], quoting Gulino *693 v Gulino, 35 AD3d 812, 812 [2006]; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443-445 [1987]). “ ‘Whether to disqualify an attorney is a matter which lies within the sound discretion of the court’ ” (Hele Asset, LLC v S.E.E. Realty Assoc., 106 AD3d at 693, quoting Matter of Madris v Oliviera, 97 AD3d 823, 825 [2012]; see Matter of Marvin Q., 45 AD3d 852, 853 [2007]; Olmoz v Town of Fishkill, 258 AD2d 447 [1999]).

Here, the Supreme Court improvidently exercised its discretion in granting that branch of the Adams defendants’ motion which was to disqualify the plaintiffs’ attorney, inasmuch as there was insufficient proof to demonstrate that disqualification was warranted.

Accordingly, the Supreme Court should have denied that branch of the Adams defendants’ motion which was to disqualify the nonparty-appellant from representing the plaintiffs.

Balkin, J.P., Hall, LaSalle and Barros, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 1542, 148 A.D.3d 692, 47 N.Y.S.3d 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelleher-v-adams-nyappdiv-2017.

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