KUBERZIG v. ADVANCED DERMATOLOGY (1999)

In an action to recover damages for medical malpractice, the defendants Advanced Dermatology, P.C., Joshua L. Fox, and Marcy Goldstein appeal from an order of the Supreme Court, Nassau County (Schmidt, J.), dated March 16, 1998, which denied their motion to disqualify John J. Brant, Jr., as counsel for the plaintiff.

ORDERED that the order is affirmed, with costs.

 The appellants moved to disqualify the plaintiff's counsel, John J. Brant, Jr., on the ground that Brant was a former associate of a law firm which had represented the appellants Joshua L. Fox and Advanced Dermatology, P.C., in a prior medical malpractice action.   An attorney will be disqualified where the party seeking the disqualification meets its burden by establishing a substantial relationship between the issues in the litigation and the subject matter of the prior representation, or where counsel had access to confidential material substantially related to the litigation (see, Prudential Sec. v. Wyser-Pratte, 187 A.D.2d 306, 307, 589 N.Y.S.2d 335;  Forest Park Assocs. Ltd. Partnership v. Kraus, 175 A.D.2d 60, 572 N.Y.S.2d 317;  Amrod v. Doran, 107 A.D.2d 575, 576, 483 N.Y.S.2d 702;  Saftler v Govt. Empls. Ins. Co., 95 A.D.2d 54, 57, 465 N.Y.S.2d 20).   While the appellants concede that the subject matter of the prior representation did not bear any substantial relationship to the issues in this case, they contend that the plaintiff's counsel had access to confidential material substantially related to the instant case.   The record reveals that the prior lawsuit for malpractice was brought against the appellant Joshua L. Fox for his active negligence in performing cosmetic and laser surgery upon another patient, whereas the instant case is premised upon the active negligence of the defendant Michael B. Wartels and the appellant Marcy Goldstein for their alleged failure to properly treat the plaintiff for severe nodulocystic acne vulgaris.   Under the circumstances of this case, it is unlikely that Brant gained confidential information which would benefit the plaintiff (see, Anonymous v. Anonymous, 251 A.D.2d 241, 674 N.Y.S.2d 678;   Prodell v. State of New York, 125 A.D.2d 805, 509 N.Y.S.2d 911;  Amrod v. Doran, supra;  Saftler v. Govt. Empls. Ins. Co., supra;  Martin v. Donghia Assocs., 73 A.D.2d 898, 424 N.Y.S.2d 222).   Therefore, the Supreme Court providently exercised its discretion in denying the appellants' motion to disqualify the plaintiff's attorney (see, Juergens v. Schanman, 182 A.D.2d 740, 582 N.Y.S.2d 487;  Mondello v. Mondello, 118 A.D.2d 549, 550, 499 N.Y.S.2d 9).

MEMORANDUM BY THE COURT.