In deciding a motion to disqualify, the court may consider as guidance “state disciplinary rules, including. . . the New York Rules of Professional Conduct, ” (“NYRPC”). Anderson v. City of New York, 2017 WL 4382163, at *2 (S.D.N.Y. Sept. 29, 2017).
"It is well settled in this Circuit that [a] motion to disqualify . . . should be made within a reasonable time of discovering a possible conflict of interest, or a waiver will be presumed." Anderson v. City of New York, No. 16-CV-2583, 2017 WL 4382163, at *4 (S.D.N.Y. Sept. 29, 2017) (internal quotations omitted); see also Secured Worldwide, LLC v. Kinner, No. 15-CV-1761, 2015 WL 4111325, at *6 (S.D.N.Y. June 24, 2015) (finding waiver where moving party "knew all of the facts relating to the bases that he has alleged for disqualification, but sat on those rights"). Mr. Lyons has represented the Suissas in this action since at least July 2016, and Levy raised no objection until the status conference on July 28, 2020.
"[A] substantial relationship between the subject matter of counsel's prior representation and the present lawsuit exists if the facts giving rise to an issue which is material in both the former and the present litigations are as a practical matter the same." Anderson v. City of New York, 2017 WL 4382163, at *3 (S.D.N.Y. Sept. 29, 2017) (quotation omitted). To meet this standard, "the relationship between issues in the prior and present cases [must be] 'presently clear.'
The length of delay in bringing a disqualification motion is an important consideration, but is "not determinative." KLG Gates v. Brown, 506 B.R. 177, 192 (E.D.N.Y. 2014) (citation omitted); see also Anderson v. City of New York, No. 16-CV-2583, 2017 WL 4382163, at *4 (S.D.N.Y. Sep. 29, 2017) (a motion to disqualify "should be made within a reasonable time of discovering a possible conflict of interest, or a waiver will be presumed.") (collecting cases). Courts should also consider "[w]hen the movant learned of the conflict; whether the movant was represented by counsel during the delay; why the delay occurred, and, in particular, whether the motion was delayed for tactical reasons; and whether disqualification would result in prejudice to the nonmoving party."