Opinion
June 25, 1998
Appeal from the Supreme Court, Bronx County (Judith Gische, J.).
Automatic, non-discretionary disqualification pursuant to Code of Professional Responsibility DR 5-108 ( 22 NYCRR 1200.27; see, e.g., Tekni-Plex, Inc. v. Meyner Landis, 89 N.Y.2d 123) was properly denied since defendant did not demonstrate that the relevant interests of his 15-year-old son, who is now represented by counsel other than the Law Guardian, and those of his eight other children, who continue to be represented by the. Law Guardian, are materially adverse (cf., Tekni-Plex, Inc. v. Meyner Landis, supra, 89 N.Y.2d, at 135), and because defendant is neither a present client nor a former client of the Law Guardian (see, Matter of Metropolitan Transp. Auth. [Cohen], 222 A.D.2d 340, 341). Nor was the motion court's denial of disqualification, to the extent that it was sought by reason of an alleged actual conflict of interest, an improvident exercise of discretion (see, Smith v. Smith, 241 A.D.2d 980), since it is not reasonably probable that the 15-year-old son revealed confidences to the Law Guardian relevant to the subject matter of the litigation (cf., Matter of H. Children, 160 Misc.2d 298, 300-301).
Concur — Milonas, J. P., Ellerin, Nardelli, Rubin and Andrias, JJ.