The Petitioner, Esther Rachel Hersh ("Esther"), in this and two related proceedings under File Nos. 2007-4035/D and E moves, by notice of motion, to disqualify the Respondents' counsel, Rodney Brown ("Brown") and his firm, Brown and Whalen, P.C., from representing Mark Hersh ("Mark") as well as GM Canmar Residence Corp. ("Canmar"), 229 W. 109th Street Realty Corp. ("229 W. 109"), Elmar Realty LLC ("Elmar"), GM Beverly Corp. ("Beverley"), JGM Realty LLC ("JGM"), Main Street Liberty LLC ("Main Street"), West Colonial Enterprises LLC ("West"), Frant Hotel LLC ("Frant") and Breman Capital Corp. ("Brant"), collectively referred to hereafter as the Respondent corporations.

The Respondents cross-move, in this and the related proceedings, for an order granting sanctions against the Petitioner and her counsel for making the motion to disqualify counsel.

The facts, procedural history, acrimony and vitriol in these matters, punctuated by more than 24 motions, will not be recounted by this court yet again except as directly related to the within motions.

Mark and the Respondent corporations previously made motions to disqualify the Petitioner's counsel in this and the related proceedings. After a hearing, this court denied the branch of the motion to disqualify the Petitioner's counsel, T. Kevin Murtha ("Murtha"), and his law firm, T. Kevin Murtha & Associates, from representing the Petitioner based [*2]upon an alleged conflict of interest. However, the court did disqualify Murtha from representing the Petitioner at the trial of these matters under the witness-advocate rule (See, Rules of Professional Conduct 3.7).

Unsurprisingly, the Petitioner now claims that Brown and his firm should be disqualified on the same grounds that were asserted by the Respondents against Murtha. In support of the branch of the motion to disqualify Brown on an alleged conflict of interest, the Petitioner asserts that Brown, while a partner at the firm of Brown & Fox, P.C., represented the Petitioner, Mark, Canmar, and 229 W. 109 as defendants in two proceedings that were filed in Supreme Court, New York County by Rafael Fintsi ("Fintsi"), the Petitioner's brother.

In the first proceeding, commenced in February 2003, Fintsi sought, inter alia, an order dissolving Canmar and 229 W. 109 and the appointment of a receiver. Annexed to the moving papers was a letter retainer, addressed to the Decedent and Mark by which Brown & Fox, P.C. agreed to represent the Decedent, Mark and the corporations in the aforementioned proceedings. The retainer was executed by Brown, the Decedent and Mark. The Decedent signed the retainer on behalf of 229 W. 109 and Mark executed it on behalf of Canmar. Brown filed a motion to dismiss the proceeding pursuant to CPLR §3211[a][7] and by order dated October 16, 2003 the petition was dismissed.

In February 2004, Fintsi filed another proceeding in which he sought nearly identical relief, except that 229 W. 109 was omitted as a respondent. In support of both the 2003 and the 2004 petitions, Fintsi asserted, inter alia, that the Decedent and Mark, as majority shareholders, blocked Fintsi, a minority shareholder, from participating in the operation of the corporations, prevented his inspection of the books and records, failed to account, mismanaged the corporations and diverted corporate assets to their personal accounts.

The 2004 proceeding was settled via a written agreement, dated April 28, 2004, that was annexed to the moving papers. Pursuant to the terms of that contract, Fintsi agreed to discontinue the 2004 proceeding and to sell his shares in the subject corporations to the Decedent and Mark for approximately $1,000,000.00 and other consideration. The agreement was apparently executed by Fintsi, the Decedent and Mark. A stipulation discontinuing the proceeding was signed by Brown and Fintsi's counsel.

In his affirmation in opposition and in support of the cross-motion, Brown acknowledges the existence of an attorney-client relationship between himself, the Decedent and Mark for the purposes of the 2003 and 2004 litigations. Brown claims that all his contacts during these litigations were with Mark and that he achieved the results in the 2003 and 2004 proceedings without any communication whatsoever between himself and the Decedent. Indeed, Brown avers another attorney who was not a member of his firm was the "primary attorney negotiator" in the 2004 litigation.

The Petitioner's argument that this motion is untimely is without merit. "Where a party seeks to disqualify its adversary's counsel in the context of ongoing litigation, courts consider when the challenged interests became materially adverse to determine if the party could have moved at an earlier time . . . If a party moving for disqualification was aware or should have been aware of the facts underlying an alleged conflict of interest for an extended period of time before bringing the motion, that party may be found to have waived any objection to the other party's representation" (Hele Asset, LLC v S.E.E. Realty Assoc.,AD3d, 964 NYS2d 570). [*3]

Here, the only definitive proof adduced as to when the Petitioner actually became aware Brown represented the Decedent on a previous occasion was revealed approximately four months before the this motion was filed during dicovery in this matter. The argument that the Petitioner should have known of this fact long before the motion was made is unpersuasive (Cf., Matter of Aaron W. v. Shannon W., 96 AD3d 960. At best, the Respondents demonstrate that the Petitioner could, not should, have become aware of the prior representation. Moreover, discovery is ongoing in this matter, not near completion, and trial is far from imminent.

As noted by the court in two previous decisions, on a motion to disqualify an attorney based upon an alleged conflict of interest a lawyer may not undertake to represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client' (22 NYCRR 1200.27[a][1]; see also, In re Hof, 102 AD2d 591). The burden is on the party seeking disqualification to show that there was a prior attorney-client relationship; that the matters involved in both representations are substantially related; and that the present interests of the attorney's past and present clients are materially adverse' (Falk v Chittenden, 11 NY3d 73, 78; see also, M.A.C. Duff, Inc. v. ASMAC, LLC, 61 AD3d 828). Only "where the movant satisfies all three inquiries does the irrebuttable presumption of disqualification arise" (Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 132).

Based on this court's prior decision on the Respondents' motion to disqualify, it is law of the case that the interests of the Petitioner and Respondents are presently materially adverse. However, unlike the prior motion, the issue of the existence of an attorney-client relationship here can not be disputed. It is unchallenged that Brown and his firm represented the Decedent in two prior litigations. A written retainer signed by Brown and the Decedent memorializes that relationship. While Brown did not represent the Petitioner, she is the fiduciary of an estate and stands in the Decedent's shoes (See, In re Estate of Wilkinson, 152 AD2d 585). Moreover, the attorney-client privilege survives the client's death (See, Jerome Prince, Richardson on Evidence §5-210 [Farrell 11th ed 1995]) and may be asserted or waived by the fiduciary after death (See, Mayorga v Tate, 302 AD2d 11).

Brown's attempt to compartmentalize his representation of the Decedent into just the litigation and not the negotiation of the settlement of the 2004 case is nonsensical. The moving papers demonstrate that Brown was the attorney of record for the Decedent and Mark throughout the 2003 and 2004 actions and there is no proof that Brown was either fired by the Decedent or appropriately relieved pursuant to CPLR §321.

As in the prior motion, there is disagreement about the existence of a substantial relationship between the 2003 and 2004 proceedings and the matters presently before this court.

To demonstrate the existence of a substantial relationship "the issues in the present litigation must be 'identical to' or 'essentially the same'" as those addressed in the prior representation (Lightning Park v Wise Lerman & Katz, P.C., 197 AD2d 52, 55; In re Lichtenstein, 171 Misc 2d 29, 35). Alternatively stated, the relationship between the former and present matters must "have a common subject matter" (Anonymous v Anonymous, 262 AD2d 216).

While the relief sought by Fintsi in the two prior proceedings and the Petitioner in [*4]the present proceedings is similar, the court is not swayed that a substantial relationship exists between the matters (See, Spano v Tawfik, 271 AD2d 522; Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, 236 AD2d 783; Prudential Sec. v Wyser-Pratte, 187 AD2d 306). The claims from the proceedings at issue arise from events that occurred at least three and as many as 17 years apart and only two of the nine Respondent corporations in the present proceedings were involved in the Fintsi proceedings (See, Crawford v Antonacci, 297 AD2d 419). It appears that Brown's representation in both matters was brief and relatively limited (See, Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, supra). The 2003 proceeding was dismissed prior to the service of a responsive pleading for failure to state a claim and the 2004 proceeding was settled less than three months after it was commenced. It also appears that Brown's involvement with Canmar and 229 W. 109 was not wide ranging, but limited to the litigation brought by Fintsi (Cf., Mancheski v Gabelli Group Capital Partners, Inc., 22 AD2d 532).

In any event, any privilege related to client confidences gained by Brown regarding the Decedent's involvement and management of Canmar and 229 W. 109 would appear to be waived and subject to disclosure with the commencement of these proceedings challenging Mark's direction of these corporations and the contest over his claim of ownership of 229 W. 109 (See, Crawford v Antonacci, supra).

Additionally, under the circumstances presented in the moving papers, it is unlikely Brown or any member of his firm gained confidential information during the prior representation that would benefit the Respondents in the present proceedings (See, Calandriello v Calandriello, 32 AD3d 450; Niagara Mohawk Power Corp. v Town of Tonawanda Assessor, supra).

Accordingly, the branch of the motion to disqualify Brown and his firm based upon a claimed conflict of interest is denied.

Whether to disqualify an attorney based upon the witness-advocate rule also rests within the sound discretion of the court (See, Falk v Gallo, 73 AD3d 685). The witness-advocate rule contained in the Rules of Professional Conduct provide guidance, but are not binding on the court determining a disqualification motion (See, Trimarco v Data Treasury Corp., 91 AD3d 756). Rule 3.7 [a] states that a "lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact". In the application of that rule, courts have held that the party seeking its application must demonstrate "that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party" (Trimarco v Data Treasury Corp., supra at 757). "Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 446).

The court is not persuaded that the Petitioner has met either branch to require Brown's disqualification under Rule 3.7 [a] at this time. The Petitioner has failed to explain precisely what testimony from Brown is necessary to the proceeding to remove Mark as a co-trustee, for discovery and for dissolution. More importantly, the Petitioner did not show how that expected testimony would be prejudicial to the Respondents.

The Petitioner further argues that Mark's deposition testimony regarding the [*5]settlement of the 2004 proceeding necessitates Brown being called as a witness. Specifically, the Petitioner claims that Mark's assertion of complete ownership of shares that were the subject of the 2004 settlement agreement, his failure to confirm the Decedent's signature on the agreement, and his denial that Brown represented the Decedent are issues to which Brown can offer salient testimony. However, the Petitioner offers only speculation to sustain this assertion. There was nothing offered in the moving papers to indicate that Brown or any member of his firm advised Mark concerning a purported side deal with Fintsi. As to whether Brown's testimony would be prejudicial to Mark, the Petitioner does not even offer speculation to support this element.

Accordingly, the branch of the motion to disqualify Brown and his firm on the basis of the witness-advocate rule is denied (See, Magnus v Sklover, 95 AD3d 837).

The cross-motion for sanctions against the Petitioner and her counsel is denied. The Respondents description of the Petitioner's motion to disqualify as being a "tactic" and "frivolous" is disingenuous at best. Both parties have asserted concerns regarding their adversary's counsel with respect to litigation involving family owned and operated corporations. Respondents opted to move first and their claim of conflict of interest against Murtha was ultimately determined to be unsubstantiated. The legal tenor of moral indignation which permeates their papers in this instance is not understandable given that the identical legal issue to be determined in the present motion to disqualify was closer than the first. Perhaps Respondents should have recalled the age-old idiomatic expression "what's good for the goose is good for the gander" prior to their initial legal salvo.

This is the decision and order of the court.

Dated: June 27, 2013

SURROGATE