OLMOZ v. Crystal O'Brien, Respondent. (1999)

In an action, inter alia, to recover damages for false arrest and malicious prosecution, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Jiudice, J.), dated December 23, 1997, as denied those branches of his motion which were (1) pursuant to CPLR 3126 to strike the answer of the defendant Crystal O'Brien, and (2) to disqualify the counsel for the defendant Crystal O'Brien.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 It is well settled that the disqualification of an attorney is a matter which rests within the sound discretion of the court (see, Fischer v. Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 839).   A party's entitlement to be represented in ongoing litigation by counsel of his own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted (see, Feeley v. Midas Props., 199 A.D.2d 238, 604 N.Y.S.2d 240), and the movant bears the burden on the motion (see, S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445, 515 N.Y.S.2d 735, 508 N.E.2d 647;  Matter of Reichenbaum v. Reichenbaum & Silberstein, 162 A.D.2d 599, 556 N.Y.S.2d 933).   Although a hearing may be necessary where a substantial issue of fact exists as to whether there is a conflict of interest (see, Poli v. Gara, 117 A.D.2d 786, 499 N.Y.S.2d 112), the plaintiff's mere conclusory assertions that there is a conflict of interest are insufficient to warrant a hearing (see, Giblin v. Sechzer, 97 A.D.2d 833, 468 N.Y.S.2d 719).   Here, the Supreme Court providently exercised its discretion in refusing to disqualify the defense counsel for Crystal O'Brien since the plaintiff failed to present anything more than sheer speculation as to the existence of a conflict of interest.

 Moreover, in order “to invoke the drastic remedy” of striking a pleading for failure to disclose pursuant to CPLR 3126, the trial court “must determine that the party's failure to comply was the result of willful, deliberate and contumacious conduct or its equivalent” (Beard v. Peconic Foam Insulation Corp., 149 A.D.2d 555, 556, 540 N.Y.S.2d 258).   The record does not support the plaintiff's contention that O'Brien's failure to be deposed was the result of willful, deliberate, and contumacious conduct.

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.