Magjuka v. Greenberger
| Decision Date | 09 December 1974 |
| Citation | 362 N.Y.S.2d 162,46 A.D.2d 867 |
| Parties | Margaret Elizabeth MAGJUKA, etc., of the Estate of John Joseph Magjuka, Deceased, Plaintiff-respondent, v. Monroe GREENBERGER et al., Defendants, Joseph A. Trunfio, Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R. M. Ginsberg, New York City, for plaintiff-respondent.
N. Bard, Brooklyn, for defendant-appellant.
Before NUNEZ, J.P., and MURPHY, CAPOZZOLI and LANE, JJ.
Order, Supreme Court, New York County, entered on or about September 7, 1973, denying the motion of defendant Trunfio to disqualify plaintiff's attorneys, unanimously affirmed, without costs and without disbursements.
The instant appeal is intimately related to a companion appeal, decided simultaneously herewith, in which we unanimously affirmed a judgment in favor of plaintiff against defendant-appellant Trunfio and others, after a jury trial. (See Magjuka v. Greenberger et al., 46 A.D.2d 1014, 363 N.Y.S.2d 526.)
Shortly before commencement of the trial, appellant sought disqualification of plaintiff's counsel in this malpractice case on the ground that Trunfio's former attorney Bernard Turkewitz, was now associated with said law firm. Special Term denied the application and fixed a trial date.
The problems engendered by the dissolution of Mr. Turkewitz's law firm and his subsequent employment by the firm of attorneys representing plaintiff, have recently received judicial attention. (See Rotante v. Lawrence Hospital, 46 A.D.2d 199, 361 N.Y.S.2d 372; Kaye v. Jamaica Hospital, 46 A.D.2d 652, 360 N.Y.S.2d 846; Edelman v. Levy, 42 A.D.2d 758, 346 N.Y.S.2d 347.) Concededly, in each of the above-cited cases, the motion to disqualify was granted. However, in the instant case, unlike the others, the denial of the application is being reviewed after a full trial and simultaneously with a review of the judgment entered thereon. In Rotante, supra, and Edelman, supra, the Court was concerned and correctly so, with the appearance, if not the fact, of a conflict of interest. The trial has now been concluded. We have neither found nor been referred to any prejudicial disclosure imparted as a result of the previous relationship between appellant and Mr. Turkewitz. Moreover, reversal of the instant order will also necessitate a reversal of the judgment. Upon a retrial, whatever improper disclosures may appear in the trial record (despite our above-noted inability to find any) would be available to new ...
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...to disqualify on the ground of a conflict of interest, 81 yet assert a denial of due process on appeal. See Magjuka v. Greenberger, 46 A.D.2d 867, 362 N.Y.S.2d 162, 163 (1974). We must reconcile the governmental interests in conserving judicial and prosecutorial resources 82 and in preservi......
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...of impropriety precedes a decision on the merits, the courts are justifiably more sensitive to such appearances (Magjuka v. Greenburger, 46 A.D.2d 867, 362 N.Y.S.2d 162) and doubts as to the existence of a conflict of interest are to be resolved in favor of disqualification (Narel Apparel v......
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