Opinion
12374N Index No. 805276/18 Case No. 2020-00985
11-12-2020
Patricia A. PATANE et al., Plaintiffs–Respondents, v. Mark TAN, M.D. et al., Defendants, Paul Chu, M.D. et al., Defendants–Appellants.
Gibbons P.C., New York (Daniel S. Weinberger of counsel), for appellants. Levine & Slavit, PLLC, New York (Ira S. Slavit of counsel), for respondents.
Gibbons P.C., New York (Daniel S. Weinberger of counsel), for appellants.
Levine & Slavit, PLLC, New York (Ira S. Slavit of counsel), for respondents.
Kapnick, J.P., Mazzarelli, Moulton, Mendez, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 6, 2019, which, to the extent appealed from, denied the motion of defendants Paul Chu, M.D. and AmeriPath New York, LLC d/b/a Dermpath Diagnostics Pathology Associates to disqualify plaintiffs' counsel, Levine & Slavit PLLC, unanimously affirmed, without costs.
Although an associate at plaintiffs' law firm was previously an associate with the firm that currently represents AmeriPath New York LLC, representing that defendant in multiple prior matters, and the parties' interests are now directly adverse, disqualification is not required here (see Becker v. Perla , 125 A.D.3d 575, 5 N.Y.S.3d 34 [1st Dept. 2015] ). The present and prior matters are not substantially related, with defendants failing to show that the issues in the matters are identical or essentially the same (see Lightning Park v. Wise Lerman & Katz , 197 A.D.2d 52, 55, 609 N.Y.S.2d 904 [1st Dept. 1994] ). Further, defendants fail to identify any material confidential information that the associate obtained from the defendants during the prior matters, referencing only generic legal documents and activities (see Tekni–Plex, Inc. v. Meyner & Landis , 89 N.Y.2d 123, 131, 651 N.Y.S.2d 954, 674 N.E.2d 663 [1996] ). The associate left the defendants' counsels' firm a year before the alleged malpractice that forms the basis of this claim (see Bloom v. St. Paul Travelers Cos., Inc. , 24 A.D.3d 584, 585–586, 806 N.Y.S.2d 692 [2d Dept. 2005] ), and the basis for liability against AmeriPath is limited in the pleadings to vicarious liability for the actions of its employee Paul Chu, M.D. (see Kuberzig v. Advanced Dermatology , 260 A.D.2d 548, 688 N.Y.S.2d 596 [2d Dept. 1999] ).