McCutchen v. 3 Princesses & A P Trust Dated February 3, 2004

• Decision Date: 07 April 2016
• Docket Number: 521683.
• Citation: 29 N.Y.S.3d 611,138 A.D.3d 1223,2016 N.Y. Slip Op. 02703
• Parties: Charles W. McCUTCHEN, Appellant, v. 3 PRINCESSES AND A P TRUST DATED FEBRUARY 3, 2004, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

138 A.D.3d 1223

29 N.Y.S.3d 611

2016 N.Y. Slip Op. 02703

Charles W. McCUTCHEN, Appellant,

v.3 PRINCESSES AND A P TRUST DATED FEBRUARY 3, 2004, et al., Respondents.

521683.

Supreme Court, Appellate Division, Third Department, New York.

April 7, 2016.

Law Office of James M. Brooks, Lake Placid (James M. Brooks of counsel), for appellant.

John J. Randall IV, Locust Valley, and Wilkins & Griffin, PLLC, Lake Placid (Michael J. Hutter of Powers and Santola, LLP, Albany, of counsel), for respondents.

Before: PETERS, P.J., McCARTHY, EGAN JR. and LYNCH, JJ.

EGAN JR., J.

Appeal from an order of the Supreme Court (Muller, J.), entered April 24, 2015 in Essex County, which, among other things, granted a motion by defendant Randall Family Trust, U/A Dated 12–14–12 to disqualify plaintiff's attorney.

Plaintiff is the owner of certain real property fronting the western shore of Lake Placid in the Town of North Elba, Essex County. Defendant 3 Princesses and A P Trust Dated February 3, 2004 (hereinafter 3 Princesses) owns a parcel of land lying to the south of and adjacent to plaintiff's property; south of and adjacent to that property are additional parcels of land owned by the remaining named defendants, including a parcel owned by defendant Randall Family Trust. The nearest public road to all of these properties is County Route 31—also known as Whiteface Inn Road. Travel between this public road and the respective parcels is accomplished via a private roadway known as Blodgett Road, which extends northeasterly from Whiteface Inn Road and runs adjacent to and/or over the boundary lines of defendants' respective parcels and, according to plaintiff, extends onto his land as well.

In March 2006, 3 Princesses' predecessors in title—Harold Krieger and Roberta Russell Krieger—commenced an action against, insofar as is relevant here, John Randall III and Annelie Randall seeking to adjudicate the rights of the Randalls to traverse the portion of Blodgett Road that crossed over what was then the Kriegers' property. The Randalls hired a local attorney, James Brooks, to represent them in that matter, which ultimately was resolved by the execution of a supplemental easement agreement among Annelie Randall, 3 Princesses, defendants HOM Greentop Limited Partnership (hereinafter Greentop), Tamaracks Partners, Harold William Davis III, Sibyl D. Quayle and another unrelated individual. Pursuant to the terms of the supplemental easement agreement, “all of the terms, conditions and covenants contained [there]in shall run with the land and shall forever bind and inure to the benefit of the parties [there]to and their heirs, successors and assigns.” Deed transfers within the Randall family thereafter ensued for estate planning purposes, and title to the parcel formerly owned by the Randalls now is held by the Randall Family Trust.

In February 2011, 3 Princesses erected a locked gate across Blodgett Road, thereby denying plaintiff, who allegedly had been traversing such roadway to access his property since 1956, the use thereof. As a result, plaintiff retained Brooks to commence this RPAPL article 15 action against defendants seeking, among other things, a declaration that plaintiff had a prescriptive easement and right-of-way on and over Blodgett Road from his parcel of land to the point where such roadway joins Whiteface Inn Road. Greentop, Tamaracks Partners and the Randall Family Trust answered and raised, as an affirmative defense, the failure to join a necessary party, i.e., Whiteface Holdings LLC, while 3 Princesses, Davis and Quayle filed a pre-answer motion to dismiss the complaint upon the same ground.¹ Additionally, the Randall Family Trust moved to disqualify Brooks from acting as plaintiff's attorney-citing Brooks' prior representation of John Randall III and Annelie Randall in connection with the easement rights governing the property now held by the trust. Supreme Court, among other things, denied the motion to dismiss the complaint, but ordered that Whiteface Holdings be joined as a necessary party, and granted the motion to disqualify Brooks from representing plaintiff in this action. Plaintiff now appeals.

We affirm, albeit for reasons other than those expressed by Supreme Court. Pursuant to Rules of Professional Conduct (22 NYCRR 1200.0

) rule 1.9(a), “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing” (see Kain Dev., LLC v. Krause Props., LLC, 130 A.D.3d 1229, 1231, 14 N.Y.S.3d 520 [2015]

).² Accordingly, where, as here, a party is seeking to disqualify its adversary's counsel based upon counsel's purported prior representation of the moving party, such party “must establish (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Gjoni v. Swan Club, Inc., 134 A.D.3d 896, 897, 21 N.Y.S.3d 341 [2015] [internal quotation marks and citations omitted]; accord

Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 98, 851 N.Y.S.2d 19 [2008] ; see

Falk v. Chittenden, 11 N.Y.3d 73, 78, 862 N.Y.S.2d 839, 893 N.E.2d 116 [2008] ; Matter of Peters, 124 A.D.3d 1266, 1267, 1 N.Y.S.3d 604 [2015] ). If “the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows” (Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d at 98, 851 N.Y.S.2d 19 ; see Falk v. Chittenden, 11 N.Y.3d at 78, 862 N.Y.S.2d 839, 893 N.E.2d 116

; Jamaica Pub. Serv. Co. v. AIU Ins. Co., 92 N.Y.2d 631, 636, 684 N.Y.S.2d 459, 707 N.E.2d 414 [1998] ; Tekni–Plex, Inc., v. Meyner & Landis, 89 N.Y.2d 123, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663 [1996] ; Matter of Peters, 124 A.D.3d at 1267, 1 N.Y.S.3d 604 ; Anonymous v. Anonymous, 262 A.D.2d 216, 216, 691 N.Y.S.2d 769 [1999] ).

That said, even in instances where the irrebuttable presumption does not attach and, hence, disqualification is not mandatory, disqualification nonetheless may be warranted depending upon the particular facts and circumstances of a given case (see Halberstam v. Halberstam, 122 A.D.3d 679, 679–680, 995 N.Y.S.2d 738 [2014]

; Anonymous v. Anonymous, 262 A.D.2d at 216, 691 N.Y.S.2d 769 ; see also

Mineola Auto., Inc. v. Millbrook Props., Ltd., 118 A.D.3d 680, 680–681, 986 N.Y.S.2d 354 [2014] ). In this regard, “[i]t is well settled that an attorney must avoid not only the fact, but even the appearance, of representing conflicting interests” (Matter of

Strasser, 129 A.D.3d 457, 458, 11 N.Y.S.3d 125 [2015] [internal quotation marks and citation omitted]; see

Rose Ocko Found. v. Liebovitz, 155 A.D.2d 426, 427, 547 N.Y.S.2d 89 [1989] ). To that end, “[a]n attorney may not place himself [or herself] in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional relationship” (Roddy v. Nederlander Producing Co. of Am., Inc., 96 A.D.3d 509, 509, 949 N.Y.S.2d 10 [2012] [internal quotation marks and citations omitted]; see Matter of

Strasser, 129 A.D.3d at 458, 11 N.Y.S.3d 125 ; Flores v. Willard J. Price Assoc., LLC, 20 A.D.3d 343, 344, 799 N.Y.S.2d 43 [2005] ). “The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Gjoni v. Swan Club, Inc., 134 A.D.3d at 897, 22 N.Y.S.3d 485 [internal quotation marks and citation omitted]; accord Matter of

Town of Oyster Bay v. 55 Motor Ave. Co., LLC, 109 A.D.3d 549, 550, 970 N.Y.S.2d 798 [2013] ; Flores v. Willard J. Price Assoc., LLC, 20 A.D.3d at 344, 799 N.Y.S.2d 43 ; see Cohen v. Cohen, 125 A.D.3d 589, 590, 2 N.Y.S.3d 605 [2015]

), and the case law makes clear that “[a]ny doubts as to the existence of a conflict of interest must be resolved in favor of...