Lake v. Health
Decision Date | 27 March 2009 |
Docket Number | CA 08-01989 |
Citation | 876 N.Y.S.2d 800,2009 NY Slip Op 02420,60 A.D.3d 1469 |
Parties | DALE LAKE et al., Respondents, v. KALEIDA HEALTH, Doing Business as MILLARD FILLMORE GATES HOSPITAL, et al., Appellants, et al., Defendants. |
Court | New York Supreme Court — Appellate Division |
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered May 14, 2008 in a medical malpractice action. The order granted the motion of plaintiffs and directed Gibson, McAskill & Crosby, LLP to withdraw as counsel for defendants Kaleida Health, doing business as Millard Fillmore Gates Hospital, and Kathryn Felice, R.N.
It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Supreme Court abused its discretion in granting plaintiffs' motion seeking to disqualify Gibson, McAskill & Crosby, LLP from representing defendants-appellants (hereafter, defendants) based on an alleged conflict of interest. Even assuming, arguendo, that plaintiffs have standing to bring the motion (see generally Maxon v Woods Oviatt Gilman LLP, 45 AD3d 1376 [2007]), we conclude that they failed to meet their burden of making "a clear showing that disqualification is warranted" (Olmoz v Town of Fishkill, 258 AD2d 447, 447 [1999]; see generally S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445 [1987]). Moreover, the motion should have been denied on the ground that plaintiffs were aware or should have been aware of the facts underlying the alleged conflict of interest for more than two years before bringing the motion, and "to allow disqualification at this advanced stage of [the] litigation would severely prejudice defendant[s]" (McDade v McDade, 240 AD2d 1010, 1011 [1997]).
Present—HURLBUTT, J.P., SMITH, FAHEY, GREEN and PINE, JJ.
To continue reading
Request your trial-
Patrolmen's Benevolent Ass'n of N.Y., Inc. v. N.Y. State Pub. Emp't Relations Bd.
...692, 693–694, 964 N.Y.S.2d 570 [2013] ; Gustafson v. Dippert, 68 A.D.3d 1678, 1679, 891 N.Y.S.2d 842 [2009] ; Lake v. Kaleida Health, 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800 [2009] ). A party who "was aware or should have been aware of the facts underlying an alleged conflict of interest for......
-
Hoganwillig, PLLC v. Swormville Fire Co.
...firm or an attorney bears the "burden of making ‘a clear showing that disqualification is warranted’ " ( Lake v. Kaleida Health , 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800 [4th Dept. 2009] ; see S & S Hotel Ventures Ltd. Partnership , 69 N.Y.2d at 445, 515 N.Y.S.2d 735, 508 N.E.2d 647 ; Jozefi......
-
Benevolent & Protective of Elks of U.S. v. Creative Comfort Sys., Inc.
...plaintiffs did not meet their "burden of making ‘a clear showing that disqualification is warranted’ " ( Lake v. Kaleida Health, 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800 [4th Dept. 2009] ). Plaintiffs did not submit any evidence supporting their argument that they and Ertel are one and the sa......
-
In re Estate of Peters
...106 A.D.3d 692, 693–694, 964 N.Y.S.2d 570 ; Gustafson v. Dippert, 68 A.D.3d 1678, 1679, 891 N.Y.S.2d 842 ; Lake v. Kaleida Health, 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800 ). In determining whether a party has waived any objection to a conflict of interest, "courts consider when the challenge......