Opinion
Argued May 21, 2001.
June 18, 2001.
In an action to recover damages for personal injuries, the defendant ZVI Construction Company, Inc., appeals from an order of the Supreme Court, Nassau County (Davis, J.), entered December 21, 2000, which granted the motion of the third-party defendants National Amusements and Hicksville Cinemas to disqualify the attorney for ZVI Construction Company, Inc.
McAndrew, Conboy Prisco, Woodbury, N.Y. (Robert M. Ortiz of counsel), for defendant-appellant.
Gallet Dreyer Berkey, LLP, New York, N.Y. (Beth S. Gereg of counsel), for third-party defendant-respondent Hicksville Cinemas.
Before: FRED T. SANTUCCI, J.P., GLORIA GOLDSTEIN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with costs.
The defendant ZVI Construction Company, Inc. (hereinafter ZVI) was represented in this case by the firm of McAndrew, Conboy Prisco (hereinafter MCP). Under the circumstances of this case, the position of ZVI appears to be adverse to that of the third-party defendant Hicksville Cinemas (hereinafter Hicksville). The evidence produced in connection with the motion by Hicksville and the third-party defendant National Amusements to disqualify MCP establishes that MCP had previously undertaken the defense of Hicksville in connection with personal injury actions brought by Mikel Skinner and Robert Milani.
The motion to disqualify was premised on the alleged incompatibility of the role of MCP in successively, or simultaneously, representing both Hicksville and a party adverse to Hicksville, i.e., ZVI. It appears that the accident underlying the present case occurred at the same location as the accidents underlying both the Skinner and the Milani cases. Kevin McAndrew, the attorney at MCP familiar with those two cases, as well as the instant one, affirmed that the Milani case was settled in January 2000, and that the Skinner case was settled in October of 2000. Hicksville contends that while that representation continued, MCP opposed Hicksville's motion for summary judgment in the present case.
Under all the circumstances presented here, and bearing in mind that "doubts as to the existence of a conflict of interest must be resolved in favor of disqualification" (Heelan v. Lockwood, 143 A.D.2d 881, 883), the Supreme Court providently exercised its discretion (see, Horn v. Municipal Information Servs., A.D.2d [2d Dept., Apr. 30, 2001; Matter of Epstein, 255 A.D.2d 582) in granting the motion to disqualify. This case involves a law firm which, even if for a relatively brief time, represented a client in one personal injury case while simultaneously opposing relief sought by that same client in a separate personal injury case involving the same premises. Thus, there is a more serious risk of an appearance of impropriety than in the case of a lawyer who later adopts a position which is adverse to that of a former client in a substantially related matter (see, Code of Professional Responsibility DR 5-108 [ 22 NYCRR 1200.27]; Kassis v. Teachers Ins. Annuity Assoc., 93 N.Y.2d 611; Cardinale v. Golinello, 43 N.Y.2d 288). Although ZVI contends that there is no proof of a risk that a client confidence might be betrayed, under the circumstances, we do not regard this factor as decisive (see, Cardinale v. Golinello, supra; cf., Kassis v. Teachers Insurance Annuity Association, supra; see also, 562 Eglinton v. Merlo, 277 A.D.2d 1027; Press v. Lozier, 239 A.D.2d 879).
SANTUCCI, J.P., GOLDSTEIN, H. MILLER and CRANE, JJ., concur.