By notice of motion dated November 23, 2009, under motion sequence number one, defendants Michael Minette and Tawn Minette (hereinafter the movants) jointly move for an order disqualifying the law firm of Malone, Tauber & Sohn, PC (hereinafter "the subject law firm") from representing the plaintiffs. Plaintiffs oppose the motion. Co-defendant Valerie Diaz took no position.

By order of Part 52 of this court, dated February 26, 2010, the movants' motion for an order disqualifying the subject law firm was denied with the understanding that a written decision would follow. The instant decision is issued in accordance with the order dated February 26, 2010.

On July 17, 2009, plaintiffs commenced this action for damages due to personal injuries by filing a summons and verified complaint with the Kings County Clerk's office. Defendants Michael Minette and Tawn Minette joined issue by their verified answer dated October 5, 2009.

The complaint alleges the following facts. On November 22, 2008, Tawn Minette was operating a 2004 Nissan Suburban owned by Michael Minette in the vicinity of Atlantic Avenue and Crescent Street in Kings county. At the same time and place, Valerie Diaz was operating her 1996 Hyundai with Cassandra Carter as a passenger. The vehicles collided due to the negligent operation of their respective operators and the collision caused personal injuries to Cassandra Carter and derivative injuries to her husband, Terrance Leon Pierce.

The movants' motion papers contain their counsel's affirmation and five annexed exhibits labeled A through E. Exhibit A is a New York State Department of Motor Vehicle's amended police accident report (MV-104) pertaining to the accident in question. Exhibit B is the instant complaint verified by plaintiffs' counsel, Malone, Tauber & Sohn, PC. Exhibit C is the movants' verified answer with cross-claim. Exhibit D is the movants' amended verified answer with cross claim and a cover letter addressed to plaintiffs' counsel. Exhibit E is an affidavit of Tawn Minette.

Plaintiffs oppose the motion with their counsel's affirmation and two annexed exhibits labeled A and B. Exhibit A is a copy of the same amended police accident report (MV-104) which the movants annexed as exhibit A to their motion. Exhibit B is an affidavit of Garry D. Sohn, a member of the subject law firm.

The movants submit an affirmation of their counsel in reply.

It is well settled that the disqualification of an attorney is a matter which rests within the sound discretion of the court (Nationwide Assoc. v Targee St. Internal Medicine Group, 303 AD2d 728 [2nd Dept., 2003] citing, Horn v Municipal Information Servs., 282 AD2d 712 [2nd Dept., 2001]).

A party seeking disqualification of an adversary's lawyer under Code of Professional Responsibility DR 5-108 (a) (1) (22 NYCRR 1200.27 [a] [1]) must prove (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel, (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse. (Nationwide Assoc. v Targee St. Internal Medicine Group, 303 AD2d 728 [2nd Dept., 2003], citing Tekni-plex v. Meyner & Landis, 89 NY2d 123 [1996]).

A party has no standing to seek the disqualification of an attorney with whom the party has no present or former attorney-client relationship (A.F.C. Enters., Inc. v New York City School Constr. Auth., 33 AD3d 736 [2nd Dept. 2006]). To prove an attorney-[*3]client relationship, there must be an explicit undertaking "to perform a specific task" (Nelson v. Roth, 69 AD3d 912-913[2nd Dept., 2010]).

When the moving party is able to demonstrate each of these factors, an irrebuttable presumption of disqualification follows (Tekni-plex v. Meyner & Landis, 89 NY2d 123, 131 [1996]). The irrebuttable presumption is imposed in order to safeguard client confidences and "to free the former client from any apprehension that" they will be used to the client's detriment in another matter (Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98 [1st Dept., 2008] citing Solow v. Grace & Co., 83 NY2d 303 [1994]).

The presumption is also intended "to avoid an appearance of impropriety on the part of the attorney or the law firm Solow v. Grace & Co., 83 NY2d 303, 308 [1994]).

However, despite these protective purposes, the disqualification rule can result in interference with a party's right to the counsel of his or her choice and has, in some instances, been employed in bad faith as a litigation tactic (Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98 [1st Dept., 2008] citing Tekni-plex v. Meyner & Landis, 89 NY2d 123, 131-132 [1996]). As a result, courts must take care to avoid mechanical application of blanket rules when determining whether movant has adequately demonstrated each of the necessary elements (Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98 [1st Dept., 2008] citing Tekni-plex v. Meyner & Landis, 89 NY2d 123, 132 [1996]). To that end, the irrebuttable presumption will not arise unless the movant makes the requisite showing as to each of the criteria (Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98 [1st Dept., 2008] citing Kassis v. Teacher's Ins. & Annuity Assn.,

93 N.Y 2d 611, 617 [1999]).

Although "[a] party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged," such right will not supersede a clear showing that disqualification is warranted (In Re Marvin Q, 45 AD3d 852 [2nd Dept. 2007]).

The following facts are undisputed and derived from the affidavits of Tawn Minette and the Gary D. Sohn. On December 5, 2008, Tawn Minette consulted with attorney Gary Sohn of Malone, Tauber & Sohn about the motor vehicle accident of November 22, 2008 and signed some papers. Gary D. Sohn advised Tawn Minette that his firm would handle her case subject to investigation. On December 15, 2008, Sohn advised her that his firm was already representing Cassandra Carter and Terrance Leon and therefore his firm could not represent her. Tawn Minette asked Gary D. Sohn for a referral to another counsel. He referred her to Leo Tekiel, her current counsel.

Although defendant Tawn Minette consulted with Gary Sohn, a member of the subject law firm, in relation to her participation in the automobile accident of November 22, 2008, the movants have not established that the firm agreed to undertake a specific task toward representing her. Tawn Minette stated in her affidavit that on December 5, 2008, the time of her initial consultation with the subject law firm, she believes that she [*4]signed a retainer agreement. Tawn Minette, however, did not provide copies of any of the papers she signed that day, nor did she describe their content, nor did she offer any explanation for not annexing these documents to the instant motion.

Gary D. Sohn, a member attorney of the subject law firm, avers that the documents Tawn Minette would have executed at the consultation of December 5, 2008, would be an acknowledgment of the mandates of the serious injury statute and of her understanding that the matter would be handled subject to investigation. He further avers, among other things, that Tawn Minette did not divulge any confidences or secrets during the consultation. Rather , she provided a copy of the New York State Department of Motor Vehicles Police Accident Report (MV-104).

The movants did not submit an affidavit of Tawn Minette in reply and, as such, did not contest the sworn allegations of fact made by Gary D. Sohn.

Therefore, the movants have demonstrated, that on December 5, 2008, the subject firm agreed to look into whether they would represent Tawn Minette, subject to an investigation. On the other hand, the subject firm has demonstrated that upon discovering that they already represented the plaintiffs, they notified Tawn Minette of the conflict and their inability to represent her within eleven days of their initial consultation with her.

Michael Minette, has never claimed to have had any contact at anytime with the subject law firm. Therefore, Michael Minette, never had an attorney client relationship with any lawyer of the subject law and has no standing to seek its disqualification (Nelson v. Roth, 69 AD3d 912-913[2nd Dept., 2010]).

Tawn Minette, on the other hand, established that she consulted with the subject law firm and signed certain documents on December 5, 2008. The subject law firm established that it agreed to investigate and determine whether they would take on the specific task of representing Tawn Minette. The subject law firm determined after an investigation that they could not represent her due to a conflict and informed her of same.Consistent with the mandate to avoid a mechanical application of blanket rules when determining whether movant has adequately demonstrated each of the necessary elements in support of disqualification (Pellegrino v. Oppenheimer & Co., Inc., 49 AD3d 94, 98 [1st Dept., 2008] citing Tekni-plex v. Meyner & Landis, 89 NY2d 123, 132 [1996]) the court finds that Tawn Minette did not establish the existence of a prior attorney-client relationship between the moving party and opposing counsel (Nelson v. Roth, 69 AD3d 912-913[2nd Dept., 2010]).

Enter: