UNGER v. UNGER (2005)

In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), dated September 13, 2004, as granted that branch of the motion of the defendant wife which was to disqualify his attorney.

ORDERED that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, and the branch of the motion which was to disqualify the plaintiff's attorney is denied.

The defendant failed to meet her burden of making a “clear showing” that the disqualification of the plaintiff's attorney is warranted in this case (see Olmoz v. Town of Fishkill, 258 A.D.2d 447, 684 N.Y.S.2d 611;  Haberman v. City of Long Beach, 298 A.D.2d 497, 499, 748 N.Y.S.2d 397;  Eisenstadt v. Eisenstadt, 282 A.D.2d 570, 571, 723 N.Y.S.2d 395;  Messina v. Messina, 175 A.D.2d 866, 867, 573 N.Y.S.2d 709;  McKenna v. McKenna, 174 A.D.2d 1052, 572 N.Y.S.2d 218;  Shelton v. Shelton, 151 A.D.2d 659, 542 N.Y.S.2d 719;  Lucci v. Lucci, 150 A.D.2d 650, 541 N.Y.S.2d 994).   The competent evidence in the record shows, without contradiction, that apart from one innocuous exchange of pleasantries in a restaurant, the defendant never communicated with the plaintiff's attorney.   There is no competent proof that the plaintiff's attorney ever represented the defendant, as opposed to a corporation in which the defendant had an unspecified and apparently passive interest, and thus there is no reasonable basis upon which it might be surmised that the plaintiff's attorney ever acquired any confidential information from the defendant (cf. Grover v. Virdi, 130 A.D.2d 710, 711, 516 N.Y.S.2d 27;  Mondello v. Mondello, 118 A.D.2d 549, 499 N.Y.S.2d 9).

The defendant's remaining contentions are without merit.