Poli v. Gara
| Decision Date | 24 February 1986 |
| Parties | James POLI, etc., et al., Respondents, v. Robert H. GARA, et al., Appellants, et al., Defendants. (and another title) |
| Court | New York Supreme Court — Appellate Division |
DeVito, Pilkington & Leggett, White Plains (Michael Majewski and Joseph D. Ahearn, of counsel), for appellant Robert H. Gara.
O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, White Plains (Charles E. Luceno, of counsel), for appellants Nyack Hosp. and Anne Marie Rorabaugh.
Sichol & Hicks, P.C., Suffern (Judith Almgren Ferry and William R. Sichol, Jr., on brief), for respondents.
Before GIBBONS, J.P., and THOMPSON, NIEHOFF and KUNZEMAN, JJ.
MEMORANDUM BY THE COURT.
In a medical malpractice action, the defendant Robert Gara appeals from an order of the Supreme Court, Rockland County (Cerrato, J.), dated February 14, 1985, which granted the plaintiffs' motion to (1) disqualify the law firm representing him from further participation in this case; and (2) vacate the findings of a medical malpractice panel and direct that a new panel be convened, and the defendants Nyack Hospital and Anne Marie Rorabaugh appeal, as limited by their notice of appeal and brief, from so much of the same order as vacated the findings of the medical malpractice panel as to them.
On the court's own motion, the appellants' notices and appeal are treated as applications for leave to appeal from so much of the order as vacated the findings of the medical malpractice panel, said applications are referred to Justice Thompson, and leave to appeal is granted by Justice Thompson.
Order reversed, on the law and the facts, without costs or disbursements, and matter remitted to the Supreme Court, Rockland County, for an evidentiary hearing in accordance herewith.
Special Term, in its decision to disqualify the law firm of DeVito, Pilkington & Leggett, attorneys for Robert H. Gara, credited the plaintiffs' allegation that the plaintiff James Poli, in 1969, had consulted Anthony DeVito, a partner in that firm, in connection with the instant matter. There is no claim that Mr. DeVito was actually retained.
In their moving papers, the plaintiffs stated that Mr. Poli consulted with Mr. DeVito after being referred by another attorney, Thomas Leyden. It was further alleged that a telephone verification had been made of such referral. In his own affidavit, Mr. Poli stated that in the course of the consultation with Mr. DeVito he had transmitted confidential information. To explain the long delay in seeking disqualification, Mr. Poli stated that until November 27, 1984, when he met with his attorney to discuss the findings of the medical malpractice panel, he was unaware of Mr. DeVito's involvement in this action. The plaintiffs moved promptly thereafter to disqualify Gara's counsel and to vacate the findings of the medical malpractice panel which had concluded that the appellants were not liable for the infant plaintiff's injuries.
In an affidavit submitted in opposition to the plaintiffs' motion, Mr. DeVito denied any knowledge of the consultation with Mr. Poli and claimed he could find nothing in his files to refresh his recollection.
It is a well-established principle of law that an attorney is duty bound to avoid not only the fact but also the appearance of impropriety (e.g., People v. Shinkle, 51 N.Y.2d 417, 421, 434 N.Y.S.2d 918, 415 N.E.2d 918; Cardinale v. Golinello, 43 N.Y.2d 288, 296, 401 N.Y.S.2d 191, 372 N.E.2d 26; Code of Professional Responsibility, Canon 9). Moreover, in order to substantiate a claim of conflict of interest, the movant need not set forth the specifics of the confidential information received during the prior representation, as to do so would undermine the policy considerations underlying Canon 4 of...
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