BISON PLUMBING CITY INC v. BENDERSON 1993

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

BISON PLUMBING CITY, INC., Plaintiff-Respondent, v. Nathan BENDERSON, Ronald Benderson and David Baldauf, as Trustees of Randall Benderson 1993-1 Trust, Defendants-Appellants.

Decided: March 21, 2001

PRESENT:  PIGOTT, JR., P.J., GREEN, WISNER, KEHOE and BURNS, JJ. Harold M. Halpern, Buffalo, for defendants-appellants. Frank T. Gaglione, Amherst, for plaintiff-respondent.

 Order unanimously affirmed with costs.   Memorandum:  “A motion to disqualify another party's attorney is addressed to the sound discretion of the trial court” (Juergens v. Schanman, 182 A.D.2d 740, 741, 582 N.Y.S.2d 487).   Supreme Court properly exercised its discretion in denying defendants' motion to disqualify plaintiff's attorney based upon the failure of defendants to meet their burden of presenting sufficient proof to warrant that relief (see, Petrossian v. Grossman, 219 A.D.2d 587, 588, 631 N.Y.S.2d 187).   Defendants failed to establish that an attorney-client relationship exists between them and plaintiff's attorney or his former law firm based upon the law firm's representation of a partnership in which one of defendant trustees is a partner (see, Brooklyn Navy Yard Cogeneration Partners v. PMNC, 254 A.D.2d 447, 679 N.Y.S.2d 312;  Kushner v. Herman, 215 A.D.2d 633, 628 N.Y.S.2d 123).   Further, assuming, arguendo, that the law firm is disqualified from representing plaintiff, we conclude that defendants failed to demonstrate that the law firm's disqualification is imputed to plaintiff's attorney pursuant to Code of Professional Responsibility DR 5-105(d) (22 NYCRR 1200.24[d] ) based upon his status as “special counsel” to the law firm (see, Shelton v. Shelton, 151 A.D.2d 659, 542 N.Y.S.2d 719;  Gray v. Memorial Med. Ctr., 855 F.Supp. 377, 379-380).

MEMORANDUM: