SNYDER v. SNYDER

Reset A A Font size: Print

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

Daniel SNYDER, Plaintiff-Appellant, v. Dawn SNYDER, Defendant-Respondent.

Decided: December 31, 2008

PRESENT:  SCUDDER, P.J., SMITH, CENTRA, AND FAHEY, JJ. Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff-Appellant. Hogan Willig, Amherst (James P. Renda of Counsel), for Defendant-Respondent.

 Supreme Court properly denied plaintiff's motion seeking, inter alia, to disqualify the law firm of Hogan Willig from representing defendant after plaintiff's former attorney, Nelson F. Zakia, merged his practice with that law firm.   A party seeking to disqualify an opponent's attorney must establish “that there was a prior attorney-client relationship;  that the matters involved in both representations are substantially related;  and that the present interests of the attorney's past and present clients are materially adverse” (Falk v. Chittenden, 11 N.Y.3d 73, 78, 862 N.Y.S.2d 839, 893 N.E.2d 116;  see Tekni-Plex, Inc. v. Meyner & Landis, 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663, rearg. denied 89 N.Y.2d 917, 653 N.Y.S.2d 921, 676 N.E.2d 503).   Defendant does not dispute that plaintiff has established the existence of all three requirements but contends that plaintiff consented to the conflict of interest.   We agree.   Pursuant to Code of Professional Responsibility DR 5-108(a) (22 NYCRR 1200.27[a] ), a client may provide consent to a conflict of interest after full disclosure (see St. Barnabas Hosp. v. New York City Health & Hosps. Corp., 7 A.D.3d 83, 90-91, 775 N.Y.S.2d 9;  see also Yasuda Trust & Banking Co. [N.Y. Branch] v. 250 Church Assoc., 206 A.D.2d 259, 614 N.Y.S.2d 411).   In support of his motion, plaintiff admitted that he discussed the possibility of waiving the conflict of interest with Thomas D'Agostino, Esq., the attorney he retained after discharging Zakia.   In opposition to the motion, Zakia averred that D'Agostino had advised him that plaintiff had consented to the merger of Zakia's practice with Hogan Willig and agreed to waive any conflict of interest resulting from that merger.   Contrary to plaintiff's contention, D'Agostino had the apparent authority to inform Zakia and Hogan Willig of plaintiff's consent and waiver (see generally Hallock v. State of New York, 64 N.Y.2d 224, 231, 485 N.Y.S.2d 510, 474 N.E.2d 1178;  Vafakos v. Knight, 41 A.D.3d 140, 837 N.Y.S.2d 124).   Contrary to the further contention of plaintiff, his consent was made after full disclosure by Zakia and Hogan Willig, at which time he “had all the information [he] needed to make an informed decision” (St. Barnabas Hosp., 7 A.D.3d at 94, 775 N.Y.S.2d 9).   We thus conclude that defendant established as a matter of law that plaintiff is not entitled to disqualify the law firm hired by defendant to represent her (cf. Falk, 11 N.Y.3d at 77-78, 862 N.Y.S.2d 839, 893 N.E.2d 116).

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: