Prodell v. State

• Decision Date: 18 December 1986
• Citation: 509 N.Y.S.2d 911,125 A.D.2d 805
• Parties: Albert G. PRODELL et al., Appellants, v. STATE of New York et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 911

509 N.Y.S.2d 911

125 A.D.2d 805

Albert G. PRODELL et al., Appellants, v. STATE of New York et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

Dec. 18, 1986.

Lou Lewis (J. Scott Greer, of counsel), Poughkeepsie, for appellants.

Robert Abrams, Atty. Gen. (Alan W. Rubenstein, of counsel), Albany, for State of N.Y., respondent.

Allen I. Sak, Patchogue, for Town of Brookhaven, respondent.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Kahn, J.), entered May 1, 1986 in Albany County, which granted defendant Town of Brookhaven's motion to disqualify plaintiffs' counsel from continuing to represent plaintiffs in this action.

At issue on this appeal is whether Supreme Court abused its discretion in granting defendant Town of Brookhaven's motion to disqualify plaintiffs' counsel from continuing to represent plaintiffs in this action. We are of the view that, in the circumstances herein, the Town's motion should have been denied.

In this declaratory judgment action, plaintiffs, as taxpayers in the Shoreham-Wading River Central School District (school district), challenge the constitutionality of Laws of 1983 (ch. 1018), which requires that in the event of a real property tax overassessment of a nuclear power facility in Suffolk County, any court-ordered tax refund shall be charged to the school district in which the facility is located. The Shoreham Nuclear Power Station, owned by Long Island Lighting Company (LILCO), is located in the Town and within the school district. LILCO has commenced a series of tax certiorari proceedings against the Town, claiming that its nuclear power facility has been overassessed. The school district has intervened in these proceedings. Counsel for plaintiffs in this action also represents the school district in the tax certiorari proceedings.

In support of its motion to disqualify plaintiffs' counsel, the Town alleges that counsel's role in representing plaintiffs herein while representing the school district in the tax certiorari proceedings creates an impermissible conflict of interest, and that counsel has access to the Town's experts and other confidential material in the tax certiorari proceedings that he could disclose and use to his advantage in this action. The record contains no written decision, but Supreme Court apparently accepted these arguments and granted the Town's motion to disqualify plaintiffs' counsel. We reverse.

Although an individual's right to representation by counsel of his choice is not absolute, "any restriction imposed on that right will be carefully scrutinized", and that right "will not yield unless confronted with some overriding competing public interest" (Matter of Abrams 62 N.Y.2d 183, 196, 476 N.Y.S.2d 494, 465 N.E.2d 1). "historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests" (Greene v. Greene, 47 N.Y.2d 447, 451, 418 N.Y.S.2d 379, 391 N.E.2d 1355), but we conclude that plaintiffs' counsel has not placed himself in such a position by his representation of the school district in the tax certiorari proceedings and the taxpayers in this action. Counsel's goal in both cases is the same: to protect his client from liability for tax refunds to LILCO. To achieve this goal, counsel seeks to sustain the assessments in the tax certiorari proceedings, while in this...