IN RE: Lori JANCZEWSKI (2019)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 8, the wife appeals from an order of the Family Court, Suffolk County (Kerri N. Lechtrecker, Ct. Atty. Ref.), dated January 29, 2018.  The order, after a fact-finding hearing, and upon the granting of the husband's motion made at the close of the wife's case to dismiss that branch of the petition which was based on the allegation that the husband had committed acts on March 2, 2016, constituting a family offense for failure to make a prima facie case, dismissed that branch of the petition and vacated a temporary order of protection against the husband.

ORDERED that the order is reversed, on the law, on the facts, and in the exercise of discretion, without costs or disbursements, the wife's oral application to disqualify the husband's counsel and his law firm is granted, the temporary order of protection against the husband is reinstated, that branch of the petition which was based on the allegation that the husband had committed acts on March 2, 2016, constituting the family offense of assault in the third degree is reinstated, and the matter is remitted to the Family Court, Suffolk County, for a new fact-finding hearing and determination of that branch of the petition, before a different referee, following an appropriate stay of proceedings pursuant to CPLR 321(c).

On July 28, 2016, the wife filed a family offense petition against her husband, alleging that he had committed acts of domestic violence against her on March 2, 2016, and at other times.  The Family Court issued a temporary order of protection against the husband dated July 28, 2016.  At the fact-finding hearing, at the close of the wife's case, the court granted the husband's motion to dismiss that branch of the petition which related to the incident that occurred on March 2, 2016, for failure to make a prima facie case.  On a prior appeal, this Court concluded that the court erred in determining that the wife failed to establish a prima facie case of assault in the third degree with respect to the incident alleged to have occurred on March 2, 2016, and remitted the matter to the Family Court, Suffolk County, for a new fact-finding hearing and determination of that branch of the petition (see Matter of Janczewski v. Janczewski, 152 A.D.3d 595, 59 N.Y.S.3d 79).

On December 15, 2017, at the outset of the new fact-finding hearing, the wife made an application to disqualify the husband's counsel and his law firm based upon a conflict of interest.  The Family Court orally denied the application.  Thereafter, at the close of the wife's case, the Family Court again granted the husband's motion to dismiss that branch of the petition relating to the March 2, 2016, incident, finding that the wife's testimony lacked credibility.

The Family Court improvidently exercised its discretion in denying the wife's oral application to disqualify the husband's counsel and his law firm.  “A party seeking disqualification of its adversary's counsel based on counsel's purported prior representation of that party must establish (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” (Gjoni v. Swan Club, Inc., 134 A.D.3d 896, 897, 21 N.Y.S.3d 341 [internal quotation marks omitted];  see Falk v. Chittenden, 11 N.Y.3d 73, 78, 862 N.Y.S.2d 839, 893 N.E.2d 116;  Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663).  “A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion” (Matter of Rovner v. Rantzer, 145 A.D.3d 1016, 1016, 44 N.Y.S.3d 172 [internal quotation marks omitted] ).  However, doubts as to the existence of a conflict of interest are resolved in favor of disqualification in order to avoid even the appearance of impropriety (see Deerin v. Ocean Rich Foods, LLC, 158 A.D.3d 603, 608, 71 N.Y.S.3d 123;  Gjoni v. Swan Club, Inc., 134 A.D.3d at 897, 21 N.Y.S.3d 341;  Matter of Fleet v. Pulsar Constr. Corp., 143 A.D.2d 187, 189, 531 N.Y.S.2d 635).

Here, the wife submitted unrefuted evidence that an associate with the law firm that had previously represented her in the pending divorce action, and with whom she had discussed details of the March 2, 2016, incident that is the focal point of this proceeding, became associated on February 13, 2017, with the law firm representing the husband in both the divorce action and this proceeding.  The wife's showing satisfied all three of the relevant factors, giving rise to an irrebuttable presumption of disqualification (see Tekni–Plex, Inc. v. Meyner & Landis, 89 N.Y.2d at 131, 651 N.Y.S.2d 954, 674 N.E.2d 663;  see also Falk v. Chittenden, 11 N.Y.3d 73, 862 N.Y.S.2d 839, 893 N.E.2d 116;  Kassis v. Teacher's Ins. & Annuity Assn., 93 N.Y.2d 611, 695 N.Y.S.2d 515, 717 N.E.2d 674;  Matter of Rovner v. Rantzer, 145 A.D.3d at 1017, 44 N.Y.S.3d 172;  Halberstam v. Halberstam, 122 A.D.3d 679, 679–680, 995 N.Y.S.2d 738;  Albert Jacobs, LLP v. Parker, 94 A.D.3d 919, 919, 942 N.Y.S.2d 597).  Accordingly, based on the appearance of impropriety, disqualification was warranted (see Halberstam v. Halberstam, 122 A.D.3d at 680, 995 N.Y.S.2d 738;  Albert Jacobs, LLP v. Parker, 94 A.D.3d at 919, 942 N.Y.S.2d 597;  Wall St. Assoc. v. Brodsky, 227 A.D.2d 301, 302, 642 N.Y.S.2d 318).

Since there must be a new fact-finding hearing and determination, we further note that the Family Court erred in determining that the wife failed to establish a prima facie case that the husband had committed acts constituting the family offense of assault in the third degree on March 2, 2016. “ ‘In determining a motion to dismiss for failure to establish a prima facie case, the evidence must be accepted as true and given the benefit of every reasonable inference which may be drawn therefrom ․ The question of credibility is irrelevant, and should not be considered’ ” (Matter of Ramroop v. Ramsagar, 74 A.D.3d 1208, 1209, 902 N.Y.S.2d 422, quoting Gonzalez v. Gonzalez, 262 A.D.2d 281, 282, 691 N.Y.S.2d 122;  see Matter of Janczewski v. Janczewski, 152 A.D.3d at 597, 59 N.Y.S.3d 79;  Matter of Mack v. Richardson, 150 A.D.3d 740, 51 N.Y.S.3d 424; Matter of Bacchus v. McGregor, 147 A.D.3d 1049, 48 N.Y.S.3d 683;  Matter of Oakes v. Oakes, 127 A.D.3d 1093, 7 N.Y.S.3d 487;  Matter of Brown v. Brown, 127 A.D.3d 969, 7 N.Y.S.3d 364).  Here, the court again failed to properly apply this standard.  Viewing the wife's evidence in a light most favorable to her, and accepting such evidence as true, without considering matters of credibility, the wife established a prima facie case that the husband had committed acts constituting the family offense of assault in the third degree on March 2, 2016 (see Penal Law § 120.00[1];  Matter of Janczewski v. Janczewski, 152 A.D.3d at 597, 59 N.Y.S.3d 79;  Matter of Ramroop v. Ramsagar, 74 A.D.3d at 1209, 902 N.Y.S.2d 422).

In light of the foregoing, we remit the matter to the Family Court, Suffolk County, for a new fact-finding hearing and determination of that branch of the petition which was based on the allegation that the husband had committed acts on March 2, 2016, constituting the family offense of assault in the third degree, before a different referee.

RIVERA, J.P., CHAMBERS, HINDS–RADIX and MALTESE, JJ., concur.