Messina v. Messina

175 A.D.2d 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 19, 1991
• Status: Published

Opinion

— In a matrimonial action, the plaintiff appeals from an order of the Supreme Court, Richmond County (Kuffner, J.), dated January 30, 1991, which granted the defendant’s application pursuant to Code of Professional Responsibility DR 5-108, to disqualify the law firm of Slater, Vanderpool & Breakstone, and David Vanderpool, from representing the plaintiff in the action.

Ordered that the order is reversed, on the law, without costs or disbursements, and the motion is denied.

The defendant wife moved to disqualify the plaintiff’s attorney and his law firm, Slater, Vanderpool & Breakstone, on the ground that the predecessor firm of Mr. Vanderpool served as the parties’ “family attorney” during the marriage. Specifically, the wife alleged that Mr. Vanderpool represented her and her husband in the purchase of the marital residence in 1984, and she implies that the predecessor firm provided representation in other unspecified matters as well. However, the record only demonstrates the single representation for the purchase of the marital residence in 1984.

There is no dispute between the parties that the marital residence is property of the marriage. Additionally, Domestic Relations Law § 236 (B) (4) requires financial disclosure by the parties in a matrimonial action, and the wife has not alleged any actual misuse by the husband’s counsel of any confidences related to the subject matter of the matrimonial action (see, Cardinale v Golinello, 43 NY2d 288, 295-296). Under these circumstances, when weighing the right of a party “to freedom from apprehension” (Cardinale v Golinello, supra, at 296), as against the other party’s right to the free choice of counsel (see, Matter of Abrams [Anonymous], 62 NY2d 183), we find that the representation in the routine purchase of the marital residence some six years prior to the present action is an insufficient ground on which to rest the disqualification of the husband’s counsel (see, Lucci v Lucci, 150 AD2d 650). Eiber, J. P., Rosenblatt, Miller and Ritter, JJ., concur.