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

Dale LAKE and Karen Lake, Plaintiffs-Respondents, v. KALEIDA HEALTH, doing business as Millard Fillmore Gates Hospital, Kathryn Felice, R.N., Defendants-Appellants, et al., Defendants.

Decided: March 27, 2009

PRESENT:  HURLBUTT, J.P., SMITH, FAHEY, GREEN, AND PINE, JJ. Gibson, McAskill & Crosby, LLP, Buffalo (Victor Alan Oliveri of Counsel), for Defendants-Appellants. Stamm, Reynolds & Stamm, Williamsville (Bradley J. Stamm of Counsel), for Plaintiffs-Respondents.

Supreme Court abused its discretion in granting plaintiffs' motion seeking to disqualify Gibson, McAskill & Crosby, LLP from representing defendants-appellants (hereafter, defendants) based on an alleged conflict of interest.   Even assuming, arguendo, that plaintiffs have standing to bring the motion (see generally Maxon v. Woods Oviatt Gilman LLP, 45 A.D.3d 1376, 845 N.Y.S.2d 893), we conclude that they failed to meet their burden of making “a clear showing that disqualification is warranted” (Olmoz v. Town of Fishkill, 258 A.D.2d 447, 447, 684 N.Y.S.2d 611;  see generally 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).   Moreover, the motion should have been denied on the ground that plaintiffs were aware or should have been aware of the facts underlying the alleged conflict of interest for more than two years before bringing the motion, and “to allow disqualification at this advanced stage of [the] litigation would severely prejudice defendant[s]” (McDade v. McDade, 240 A.D.2d 1010, 1011, 659 N.Y.S.2d 530).

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.