Estate of Lambrou, Matter of

• Decision Date: 20 October 1994
• Citation: 617 N.Y.S.2d 551,208 A.D.2d 1093
• Parties: In the Matter of the ESTATE OF George E. LAMBROU, Deceased. Evlambia-Eleftheria G. Lambrou, as Executrix of the Estate of George E. Lambrou, Deceased, Respondent; Constantinos Lambrou, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 551

617 N.Y.S.2d 551

208 A.D.2d 1093

In the Matter of the ESTATE OF George E. LAMBROU, Deceased Evlambia-Eleftheria G. Lambrou, as Executrix of the Estate of George E. Lambrou, Deceased, Respondent Constantinos Lambrou, Appellant.

Supreme Court, Appellate Division Third Department.

Oct. 20, 1994.

Holmberg, Galbraith, Holmberg & Orkin (Dirk A. Galbraith, of counsel), Ithaca, for appellant.

Barney, Grossman, Roth & Dubow (Nelson E. Roth, of counsel), Ithaca, for respondent.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Appeal from an order of the Surrogate's Court of Tompkins County (Friedlander, S.), entered November 12, 1993, which, inter alia, denied respondent's cross motion to dismiss the proceeding on the ground of lack of subject matter jurisdiction.

Petitioner, as executrix of her deceased husband's estate, commenced a proceeding seeking to compel discovery of respondent, decedent's brother and business associate, pursuant to SCPA 2103. Petitioner seeks an order directing respondent to be examined and directing discovery regarding the real property owned by decedent and respondent and information pertaining to respondent's management of the travel agency owned by the brothers. In a second order to show cause, petitioner sought an order disqualifying respondent's counsel, Holmberg, Galbraith, Holmberg, Orkin and Bennett (hereinafter the Holmberg firm), from representing respondent on conflict of interest grounds because one of the attorneys in that firm, Dirk Galbraith, had allegedly represented both respondent and decedent in numerous business ventures including the drafting of a cross-purchase agreement relating to the disposition of the real estate and the management of same upon the death of one of the owners. Respondent cross-moved to dismiss petitioner's discovery proceeding on the ground of lack of jurisdiction and, alternatively, to have petitioner's attorneys disqualified, also on conflict of interest grounds. Surrogate's Court granted petitioner's motion for disqualification of the Holmberg firm and denied respondent's cross motion in its entirety.

Two issues are raised on this appeal by respondent: (1) whether Surrogate's Court appropriately disqualified defendant's attorney, and (2) whether Surrogate's Court has jurisdiction over a discovery proceeding pursuant to SCPA 2103 in the instant circumstances. ¹

Regarding the disqualification of counsel, it is well settled that "[t]he right to counsel of choice is not absolute and may be overridden where necessary" (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647). A determination of the issue requires a balancing of one party's "interest in retaining counsel of his [or her] own personal choice against [the other party's] right to be free from the apprehension of prejudice" (Murphy v. Colbert, 203 A.D.2d 619, 620, 610 N.Y.S.2d 106). Here, we agree with the conclusion of Surrogate's Court that petitioner sustained her burden in demonstrating that disqualification was appropriate. Petitioner's moving papers demonstrated a substantial relationship between the subject matter of the Holmberg firm's previous representation of the partnership and petitioner's interest in the subject litigation (see, Matter of Salzler, 170 A.D.2d 1002, 565 N.Y.S.2d 670). Thus, Surrogate's Court did not abuse its discretion in disqualifying the Holmberg firm (see, Matter of Reichenbaum v. Reichenbaum & Silberstein, 162 A.D.2d 599, 601, 556 N.Y.S.2d 933, lv. dismissed 77 N.Y.2d 873, 568 N.Y.S.2d 915, 571 N.E.2d 85).

Respondent, in his second challenge on appeal, contends that Surrogate's Court erred in denying his motion to dismiss the proceeding. Respondent urges that petitioner's allegations do not fit within SCPA former 2103...