Scafuri v. Demaso

• Decision Date: 09 March 2010
• Citation: 896 N.Y.S.2d 421,71 A.D.3d 755,2010 N.Y. Slip Op. 01948
• Parties: Louis SCAFURI, et al., respondents,v.Joseph DeMASO, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 755
896 N.Y.S.2d 421
2010 N.Y. Slip Op. 01948

Louis SCAFURI, et al., respondents,
v.
Joseph DeMASO, appellant, et al., defendant.

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

March 9, 2010.

[896 N.Y.S.2d 421]

Gabor & Marotta, LLC, Staten Island, N.Y. (Richard M. Gabor of counsel), for appellant.Bressler, Amery & Ross, New York, N.Y. (Dennis E. Kadian of counsel), for respondents.WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[71 A.D.3d 755] In an action, inter alia, to set aside a conveyance of certain real property, the defendant Joseph DeMaso appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Martin, J.), dated December 2, 2008, as

[896 N.Y.S.2d 422]

granted the plaintiffs' cross motion to disqualify the law firm of Gabor & Marotta, LLC, from representing him in the action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the cross motion is denied.

The defendant Joseph DeMaso (hereinafter the defendant) correctly contends that the Supreme Court erred in disqualifying the law firm of Gabor & Marotta, LLC, from representing him in this action. The disqualification was based on an alleged conflict of interest arising from the law firm's previous representation of the deceased aunt of the plaintiff Louis Scafuri (hereinafter the decedent) in a real property transaction with the defendant.

[71 A.D.3d 756] “[A] party seeking disqualification of [his or her] adversary's lawyer must prove: (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” ( Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663; see Falk v. Chittenden, 11 N.Y.3d 73, 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; Solow v. Grace & Co., 83 N.Y.2d 303, 308, 610 N.Y.S.2d 128, 632 N.E.2d 437). The plaintiffs failed to satisfy the first of the foregoing criteria, since the law firm never represented them in any matter and, therefore, they lacked standing to seek the law firm's disqualification ( see Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 36 A.D.3d 758, 759, 830 N.Y.S.2d 195; A.F.C....