Niagara Mohawk Power Corp. v. Town of Tonawanda Assessor

236 A.D.2d 783, 654 N.Y.S.2d 77, 1997 N.Y. App. Div. LEXIS 1699

Opinion

—Order reversed on the law without costs and motion denied. Memorandum: Supreme Court erred in granting the motion of respondents to disqualify counsel for petitioner in various tax certiorari proceedings. The party seeking to disqualify an attorney or law firm must'establish that there was a prior attorney-client relationship and that the former and current representations are both adverse and substantially related (Solow v Grace & Co., 83 NY2d 303, 308; Cardinale v Golinello, 43 NY2d 288, 295-296). Although respondents met the first prong of the test, they failed to establish that the former and current representations are substantially related. Attorney Brennan’s representation of respondents in a tax certiorari proceeding initiated by petitioner in 1975 was brief and limited in nature. Additionally, it is not disputed that the current litigation involves a different appraisal, appraiser, Town assessor and Town attorney. There is no proof that Brennan "acquired any confidential information during the prior representation” and, under the circumstances, "there is no realistic possibility that confidences were disclosed” that would be relevant to the current litigation (CNY Mech. Assocs. v Fidelity & Guar. Ins. Co., 229 AD2d 950, 951; see also, Millar El. Indus, v 421 Port Assocs., 228 AD2d 272). Respondents have merely alleged that Brennan obtained confidential information, without specifying the nature of that information or how it would bear on the issues in the current litigation (see, Yasuda Trust & Banking Co. v 250 Church Assocs., 206 AD2d 259, 260; Lightning Park v Wise Lerman & Katz, 197 AD2d 52, 55).

All concur, Wesley, J., not participating. (Appeal from Order of Supreme Court, Erie County, Glownia, J.—Disqualify Counsel.) Present—Denman, P. J., Pine, Wesley, Doerr and Balio, JJ.