The following papers numbered 1 to 7 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1-3

Opposing Affidavits (Affirmations)4,5

Reply Affidavits (Affirmations)

Affidavit (Affirmation)

Memoranda of Law6,7

In this action by plaintiff Board of Managers of McCaren Park Mews Condominium (plaintiff) alleging that a condominium building and the individual residential units therein were not constructed in accordance with the promises and representations made in the sales and marketing materials and offering plan, as amended, pursuant to which the units of the condominium were offered for sale, and asserting claims of, among other things, breach of contract, fraud, and breach of fiduciary duty, defendants McCaren Park Mews LLC (McCaren), Issac Schwartz (Schwartz), Devorah Schwartz, and Zev Weisenfeld (collectively, defendants) move, by order to show cause, for an order: (1) disqualifying Steven D. Sladkus, Esq. (Sladkus) and his law firm, Wolf Haldenstein Adler & Herz LLP (Wolf Haldenstein) from representing plaintiff in this matter, (2) permanently enjoining Sladkus and Wolf Haldenstein from revealing their confidences and from utilizing privileged information relating to them in contravention of their fiduciary obligations to them, and (3) conducting an evidentiary hearing if the court [*2]deems it necessary.^[FN1]

Schwartz is an individual who is in the business of condominium construction. He is the principal and sole member of McCaren, a limited liability company (LLC) and one of the two members of Driggs Avenue Place LLC (Driggs) and Woodpoint Plaza, LLC (Woodpoint), with the other member being Cheskel Wieder (Wieder). These LLCs are each involved in the development and construction of condominium buildings, and Schwartz has always been the sole manager of these LLCs.

In December 2009, Schwartz engaged Sladkus and Wolf Haldenstein to help defend him and Woodpoint in an ongoing action, entitled Board of Managers of Woodpoint Plaza Condominium v Woodpoint Plaza LLC (Sup Ct, Kings County, index No. 12579/06) (the Woodpoint action), in which Woodpoint, along with Schwartz, individually, were being sued for the allegedly deficient construction of a condominium building, which was developed by Woodpoint and is located at 230 Withers Street, in Brooklyn, New York. The complaint in the Woodpoint action alleged that the construction of the condominium was deficient, not in compliance with applicable building, fire safety, and energy codes, not built in accordance with the offering plan, specifications or industry standards, and not completed in a skillful manner, and utilized substandard materials that differed from the materials listed in the offering plan.

Also in December 2009, Schwartz retained Sladkus and Wolf Haldenstein in connection with a condominium project located at 475 Driggs Avenue, in Brooklyn, New York, which was constructed and developed by Driggs, and Sladkus and Wolf Haldenstein commenced an action, entitled Driggs Avenue Place LLC v Severud Associates Consulting Engineers (Sup Ct, NY County, index No. 103845/10) (the Driggs action), on behalf of Driggs. The summons with notice in the Driggs action alleged that Severud Associates Consulting Engineers, P.C. (Severud) and Steven J. Najarian, P.E. (Najarian) had committed professional malpractice, breach of contract, and/or negligence in rendering their engineering services in constructing the Driggs condominium project. At the time that Schwartz retained Sladkus and Wolf Haldenstein for the Driggs action, Schwartz was in control over the McCaren condominium and was the controlling principal of the Sponsor, and while the named plaintiff in the Driggs action was Driggs, Sladkus and Wolf Haldenstein represented Schwartz as a member/principal of Driggs, McCaren, and Roebling Park LLC (which was another LLC in which Schwartz was a member and which was also involved in the construction of a condominium building) (Roebling). This was because Severud and Najarian were involved in the construction of all three of Schwartz's condominium projects, by these LLCs, including the same condominium project by McCaren at issue in the present action. [*3]

In July 2010, a release resolving the Driggs action (the Release) was executed by Driggs, McCaren, and Roebling, by Schwartz, as Member. The Release provided that Driggs, McCaren, and Roebling released Severud and its principals and engineers from all claims with respect to the subject of the Driggs action or concerning certain construction projects in which Severud was the engineer, including the McCaren condominium project.

On July 11, 2012, plaintiff filed a summons with notice in the present action, which relates to defendants' development of a condominium apartment building located at 214 North 11th Street, in Brooklyn, New York (the building). Schwartz immediately questioned Sladkus' ability to represent plaintiff because of a conflict of interest, and Sladkus denied any conflict of interest, stating that the dispute would be resolved shortly. Thereafter, the parties tried to resolve the matter through extensive settlement negotiations, which were ultimately unsuccessful. On July 12, 2013, plaintiff filed its complaint in this action, which alleges that defendants failed to properly construct the building in accordance with alleged promises and representations. On August 2, 2013, defendants filed their instant order to show cause.

Defendants, in support of their motion, assert that since Sladkus and Wolf Haldenstein were counsel to Schwartz in the Woodpoint action and counsel to Schwartz and McCaren in the Driggs action, Sladkus and Wolf Haldenstein received confidential information about them which impacts upon the current litigation. Defendants contend that since Sladkus and Wolf Haldenstein are taking an adverse position to them by representing plaintiff in this action, they have a conflict of interest which mandates their disqualification as plaintiff's counsel.

Rule 1.9 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0), entitled "Duties to Former Clients," provides as follows:

"(a) A lawyer who has formerly represented a client in a matter shall not thereafter 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 unless the former client gives informed consent, confirmed in writing."

In addressing a disqualification motion, courts consider this Rule of Professional Conduct as guidance in rendering their determination (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 130-131 [1996], rearg denied 89 NY2d 917 [1996]). "The disqualification of an attorney is a matter that rests within the sound discretion of the court" (Columbus Constr. Co., Inc. v Petrillo Bldrs. Supply Corp., 20 AD3d 383, 383 [2d Dept 2005]; see also Albert Jacobs, LLP v Parker, 94 AD3d 919, 919 [2d Dept 2012]; Mondello v Mondello, 118 AD2d 549, 550 [2d Dept 1986]). [*4]

A party seeking disqualification of its adversary's counsel based on such counsel's purported prior representation of that party must establish: "(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" (Tekni-Plex, Inc., 89 NY2d at 131; see also Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9 [a]; Falk v Chittenden, 11 NY3d 73, 78 [2008]; Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 636 [1998]; Matter of Town of Oyster Bay v 55 Motor Ave. Co., LLC, 109 AD3d 549, 550 [2d Dept 2013]; Gabel v Gabel, 101 AD3d 676, 676 [2d Dept 2012]; Scopin v Goolsby, 88 AD3d 782, 784 [2d Dept 2011]; Calandriello v Calandriello, 32 AD3d 450, 451 [2d Dept 2006]; Columbus Constr. Co., Inc., 20 AD3d at 383). A moving party who establishes these three elements creates an irrebuttable presumption of disqualification (see Falk, 11 NY3d at 78; Tekni-Plex, Inc., 89 NY2d at 132).

The movant has the burden of establishing these elements in order for an irrebuttable presumption of disqualification to arise (see Jamaica Pub. Serv. Co., 92 NY2d at 636). If established, the irrebuttable presumption is imposed in order to "free the former client from any apprehension that matters disclosed to an attorney will subsequently be used against it in related litigation" and to avoid the appearance of impropriety' on the part of the attorney or the law firm" (Solow v Grace & Co., 83 NY2d 303, 309 [1994]).

While it is true that " [a] party's entitlement to be represented in ongoing litigation by counsel of [its] own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted'" (Matter of Dream Weaver Realty, Inc. [Poritzky—DeName], 70 AD3d 941, 943 [2d Dept 2010], quoting Aryeh v Aryeh, 14 AD3d 634, 634 [2d Dept 2005]; see also S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]; Gabel, 101 AD3d at 677), "[i]t is an undeniable maxim of the legal profession that an attorney must avoid even the appearance of impropriety" (Heelan v Lockwood, 143 AD2d 881, 883 [2d Dept 1988] [internal quotation marks omitted]).

It is an attorney's duty to preserve a client's secrets and confidences and avoid the appearance of impropriety (see Nesenoff v Dinerstein & Lesser, P.C., 12 AD3d 427, 428 [2d Dept 2004]). In some circumstances "the very appearance of a conflict of interest" is sufficient to warrant disqualification (Galanos v Galanos, 20 AD3d 450, 452 [2d Dept 2005]).

In deciding whether a conflict of interest requiring disqualification exists, the court must consider whether the lawyer or law firm that previously represented the party or entity which is seeking to disqualify that attorney, obtained, in the course of that representation, confidential information which would be disclosed or could be used against the former client in the current litigation (see Cardinale v Golinello, 43 NY2d 288, 296 [1977]; Columbus Constr. Co., Inc., 20 AD3d at 384; Sirianni v Tomlinson, 133 [*5]AD2d 391, 392 [2d Dept 1987], appeal dismissed 74 NY2d 792 [1989]).

It is not essential, however, that the prior client establish that confidential information will necessarily be disclosed in the course of the litigation (see Narel Apparel v American Utex Intl., 92 AD2d 913, 914 [2d Dept 1983]). "A reasonable probability of disclosure [ is] sufficient" (id. [internal quotation marks omitted]). Courts will infer the "reasonable probability of disclosure of confidences" from the particular nature of the past and present representations at issue (Forbush v Forbush, 107 AD2d 375, 379-380 [4th Dept 1985]).

Disqualification of the attorney will be granted where the party seeking disqualification establishes either a substantial relationship between the issues in the litigation and the subject matter of the prior representation, or where the party's former counsel had access to confidential material substantially related to the litigation (see Credit Index v RiskWise Intl., 296 AD2d 318, 318 [1st Dept 2002]; Forest Park Assoc. Ltd. Partnership v Kraus, 175 AD2d 60, 61-62 [1st Dept 1991]; Saftler v Government Empls. Ins. Co., 95 AD2d 54, 57 [1st Dept 1983]). " [D]oubts as to the existence of a conflict of interest must be resolved in favor of disqualification'" (Justinian Capital SPC v WestLB AG, NY Branch, 90 AD3d 585, 585 [1st Dept 2011], quoting Rose Ocko Found. v Liebovitz, 155 AD2d 426, 428 [2d Dept 1989]; see also Sperr v Gordon L. Seaman, Inc., 284 AD2d 449, 450 [2d Dept 2001]; Heelan, 143 AD2d at 883).

With respect to the first element of the existence of an attorney-client relationship, Sladkus and Wolf Haldenstein seek to minimize the extent of the existence of an attorney-client relationship between them and Schwartz in the Woodpoint action. Sladkus asserts that he and Wolf Haldenstein were never formally retained to act as counsel in the Woodpoint action since no retainer agreement was signed, and that he never filed any appearance as counsel for Schwartz in that action. Sladkus contends that the engagement of him and his law firm, Wolf Haldenstein, was limited and short-lived, and involved their assistance with Schwartz's retained counsel, Martin Kera, Esq. (Kera). He states that on December 14, 2009, Schwartz sent him several e-mails, which attached the pleadings, discovery notices, and motion papers that had been prepared by Kera. He claims that he did not prepare any documents or court filings in the Woodpoint action, and that, at that time, the Woodpoint action was already on the trial calendar.

Sladkus, however, admits that he reviewed the documents in mid to late January 2010, and familiarized himself with the claims being made against Schwartz. He further concedes that on January 21, 2010, he had an extensive conference call about the Woodpoint action, and that, on February 8, 2010, he met with Schwartz, Kera, and the attorney for the Board of Managers of Woodpoint Plaza, who was the plaintiff in the Woodpoint action, at the Kings County Supreme Court in order to assist Kera in opening settlement discussions, and that he negotiated dollar demands with the attorney for the Board of Managers of Woodpoint Plaza. Sladkus denies discussing the substantive claims in the Woodpoint action at that conference, and asserts that he had only reviewed a [*6]summary judgment motion and some pleadings in preparation for that conference. He states that his role in the Woodpoint action was limited to reviewing documents, participating in the conference call, and acting as a consultant attorney at this court conference to assist in facilitating the settlement of that action, and that Kera thereafter handled the settlement.

Sladkus admits that he billed for the Woodpoint action together with the Driggs action, and that his March 24, 2010 invoice included a time entry on January 21, 2010 and a second time entry on February 8, 2010 for a total of five hours. Sladkus claims, however, that Schwartz complained that he and his firm were too expensive and requested that he write off the time spent on the Woodpoint action. Sladkus states that a revised September 16, 2010 invoice was sent to Schwartz, which contained only charges for the Driggs action and no time charges for the Woodpoint action.

The absence of a formal retainer agreement or whether counsel fees were ultimately paid in connection with Sladkus' representation of Schwartz in the Woodpoint action, however, is not dispositive of the issue of whether an attorney-client relationship existed in that action. An attorney-client relationship arises "when one contacts an attorney in his capacity as such for the purpose of obtaining legal advice or services" (Matter of Priest v Hennessy, 51 NY2d 62, 68-69 [1980]). "Formality is not essential to create a legal services contract" (Talansky v Schulman, 2 AD3d 355, 358 [1st Dept 2003]). "Therefore, it is necessary to look to the words and actions of the parties to ascertain if an attorney-client relationship was formed'" (id., quoting C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 848 [3d Dept 1995]).

Here, Schwartz contacted Sladkus for the purpose of obtaining legal advice and services in the Woodpoint action. Although Sladkus claims that he was not formally retained by Sladkus and that he billed for the Woodpoint action but thereafter removed the charges for his legal services, his consultation with Schwartz and examination of the pleadings, coupled with his engagement in settlement discussions with opposing counsel, give rise to a reasonable inference that confidences were revealed, which establishes a fiduciary relationship of loyalty with respect to those communications (see Bank Hapoalim B.M. v WestLB AG, 82 AD3d 422, 422 [1st Dept 2011]; Rose Ocko Found., 155 AD2d at 427). Thus, the court finds that an attorney-client relationship between Schwartz and Sladkus and Wolf Haldenstein existed in the Woodpoint action.

As to the Driggs action, Sladkus and Wolf Haldenstein do not deny that they were formally retained by Schwartz. While Schwartz was not an individual plaintiff in that action, Sladkus admits that Schwartz retained him, on behalf of Driggs, and that Schwartz executed the Release, as a member of Driggs and McCaren, in that action. Sladkus, however, attempts to argue that his role in the Driggs action was de minimus. Sladkus claims that he only had an initial meeting with Schwartz in connection with the Driggs action and that Debra M. Schoenberg (Schoenberg), another attorney at Wolf Haldenstein who is still an attorney at that firm, was primarily responsible for and performed virtually [*7]all of the work with respect to the Driggs action.

Schoenberg explains that Severud had under-designed the foundation for the Driggs condominium building, which caused a collapse of part of the floor/roof component. She claims that she communicated almost entirely with Wieder, and that the majority of the time, she took her instructions from Wieder, rather than Schwartz. She admits, however, that Schwartz forwarded her the documents to review, and that there were a couple of conference calls in which Schwartz participated, but she claims not to remember anything particular that Schwartz may have said. Schoenberg states that Severed agreed to waive engineering fees owed to it in connection with the Driggs condominium project, as well as with the McCaren condominium project and the Roebling condominium project since it was the engineer for those projects, and that this is why McCaren, in turn, gave Severud the Release.

Although Sladkus argues that Schoenberg, rather than him, provided legal services in connection with the Driggs action, this is without moment. Rule 1.10 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that "[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule . . .1.9, except as otherwise provided therein." Thus, the conflicts of an individual attorney are generally imputed to his or her entire firm (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.10; Cardinale, 43 NY2d at 295). In addition, while Schoenberg claims to have dealt mainly with Wieder, she concedes that she had some dealings with Schwartz and, in any event, Wieder's interests were aligned with Schwartz, as well as the interests of Driggs, in which they were both members (see generally Tekni-Plex, Inc., 89 NY2d at 137).

As to the second element that the former and current representations must be substantially related, Sladkus asserts the prior matters are not substantially related to the instant action since this action involves the McCaren condominium project and the prior matters involved different condominium projects at different locations. However, Sladkus does not dispute that these prior matters pertained to allegedly defective work at these condominium projects in which Schwartz was involved as a principal of the LLCs. Thus, these prior matters fall within the scope of the subject matter of the claims now being asserted against Schwartz. Consequently, there is a substantial relationship between the former and present matters since they have a common subject matter (see Tekni-Plex, Inc., 89 NY2d at 134-135; Anonymous v Anonymous, 262 AD2d 216, 216 [1st Dept 1999]).

In fact (as discussed above), while the named plaintiff in the Driggs action was Driggs, Schwartz was involved in the construction of all three condominium projects on whose behalf he signed the Release in that action, including McCaren. In addition, the Woodpoint action, similarly to the case at bar, involved a claim by the Board of Managers alleging the failure to properly construct a condominium building in accordance with [*8]alleged promises and representations. These factors create a sufficient nexus between this representation and the prior representations (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.9; Cardinale, 43 NY2d at 295).

Moreover, as previously noted, a current matter is "substantially related" to a prior matter under rule 1.9 of the Rules of Professional Conduct (22 NYCRR 1200.0) if the current matter and the prior matters are essentially the same or if the information generated in the first matter is substantially related to a material issue in the subsequent matters (see Nesenoff, 12 AD3d at 428-429). Thus, if, in the prior representation, the attorney received specific confidential information that is substantially related to the present litigation, or if there is even a reasonable probability that the attorney received such information, this implicates rule 1.9 (see Bank Hapoalim B.M., 82 AD3d at 433; Rose Ocko Found., 155 AD2d at 427; Narel Apparel, 92 AD2d at 914). This is because the duty of loyalty to former clients is mandated in order to ensure the continued duty of maintaining former clients' confidences (see Bank Hapoalim B.M., 82 AD3d at 433). Therefore, even if the causes of action in the two matters are distinct, and even if the specific factual allegations pleaded in the two actions differ, if confidential information from the first action is relevant in the second action, then the two actions are substantially related (see Matter of Jalicia G., 2013 NY Slip Op 23307, *3 [Family Ct, Bronx County 2013]).

The operative questions regarding condominium construction and the representations made by defendants in this action are entwined with the material issues in the Woodpoint action regarding similar allegations. The claims in the Woodpoint action were similarly premised on the alleged deficient and defective construction of a condominium. Sladkus was privy to discussions regarding Schwartz's defenses in the Woodpoint action and his litigation, negotiation, and settlement strategies, where the claims and allegations in that action were of the same nature as those now raised against him. Schwartz confided in Sladkus with respect to his litigation strategy and communicated to Sladkus confidences both in person and by telephone. Such communications relate to substantially the same issues and matters forming the basis of the present action. Sladkus also represented Schwartz as the sole member of McCaren as one of only two members of Driggs, and Sladkus and Wolf Haldenstein were privy to Schwartz's personal involvement with respect to the construction of the Driggs condominium project, as well as his litigation, negotiation, and settlement strategies in that action.

Thus, Sladkus was privy to protected confidences of Schwartz, and a reasonable probability of disclosure of confidences exists if Sladkus continues to represent plaintiff (see Albert Jacobs, LLP, 94 AD3d at 919; Wall St. Assoc. v Brodsky, 227 AD2d 301, 302 [1st Dept 1996]). This presents a conflict of interest and, at the very least, raises an appearance of impropriety which warrants disqualification.

There is a continuing duty of confidentiality that an attorney owes to a former [*9]client (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.6; Kassis v Teacher's Ins. & Annuity Assn., 93 NY2d 611, 615-616 [1999]; Cardinale, 43 NY2d at 295-296). A former client may be justifiably concerned about the continuing sanctity of his or her confidences if his or her former attorney subsequently represents another party against him or her (see Solow, 83 NY2d at 309). Thus, regardless of whether Sladkus and Wolf Haldenstein actually obtained and disseminated confidential information in connection with their former representation of Schwartz, defendants are "entitled to freedom from apprehension and to certainty that [their] interests will not be prejudiced" due to Sladkus and Wolf Haldenstein's prior representation (Cardinale, 43 NY2d at 296; see also Columbus Constr. Co., Inc., 20 AD3d at 384; Nationwide Assoc. v Targee St. Internal Medicine Group, 303 AD2d 728, 729 [2d Dept 2003]). Therefore, since it appears that Sladkus and Wolf Haldenstein received confidential information relevant to the issues in the present action during their prior representations of Schwartz, the court finds that the prior actions and the current one are substantially related within the meaning of rule 1.9 of the Rules of Professional Conduct (22 NYCRR 1200.0).

As to the third element, it is undisputed that the former and current representations are adverse since Sladkus and Wolf Haldenstein, in their present representation of plaintiff, seek to hold Schwartz, individually, and McCaren (of which Schwartz is the sole member) liable for, among other things, fraud, breach of contract, and breach of fiduciary duties, which is adverse to their former role in defending Schwartz from these similar claims. Thus, defendants have established that Schwartz had a prior attorney-client relationship with Sladkus and Wolf Haldenstein, that the matters involved in Sladkus and Wolf Haldenstein's representation of Schwartz are substantially related to the matters involved in Sladkus and Wolf Haldenstein's prior representation of Schwartz and McCaren in the Driggs action and Schwartz in the Woodpoint action, and that the interests of Schwartz and plaintiff are materially adverse. Consequently, an irrebutable presumption has been established by defendants (see Falk, 11 NY3d at 78; Tekni-Plex, Inc., 89 NY2d at 132).

No issue is raised which would require an evidentiary hearing. Indeed, the very appearance of a conflict of interest in this action is sufficient to warrant disqualification of Sladkus and Wolf Haldenstein as a matter of law without the necessity for such a hearing (see Matter of Isaiah Dejohn S., 37 AD3d 725, 726 [2d Dept 2007]; Galanos, 20 AD3d at 452; Burton v Burton, 139 AD2d 554, 554 [2d Dept 1998]).

Sladkus additionally argues that defendants' one-year delay in moving, on August 2, 2013, to disqualify him and his law firm, Wolf Haldenstein, when they were aware or should have been aware of the alleged conflict of interest at or around the time plaintiff commenced this action by summons with notice in July 2012, constituted a waiver of their objection to their legal representation of plaintiff. Sladkus states that Schwartz was aware that he was acting in an adverse capacity to him in July 2012. Sladkus, among other things, points out that on July 24, 2012, Schwartz had retained an engineer, Don Erwin, [*10]P.E., to represent the Sponsor's interests in responding to the construction defect claims. He argues that since Schwartz negotiated with him in settlement discussions, this should estop or constitute a waiver of his right to object to any conflict of interest he might have and to seek his disqualification.

In addressing this argument, the court notes that "[w]here 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" (Hele Asset, LLC v S.E.E. Realty Assoc.,106 AD3d 692, 693-694 [2d Dept 2013]; see also Matter of Astor Rhinebeck Assoc., LLC v Town of Rhinebeck, 85 AD3d 1160, 1161 [2d Dept 2011]). 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 (see Matter of Aaron W. v Shannon W., 96 AD3d 960, 962 [2d Dept 2012]; Lake v Kaleida Health, 60 AD3d 1469, 1470 [4th Dept 2009]). Furthermore, where a motion to disqualify is made in the midst of litigation where the moving party knew of the alleged conflict of interest well before making the motion, it can be inferred that the motion was made merely to secure a tactical advantage (see Matter of Voss v 87-10 51st Ave. Owners Corp., 292 AD2d 622, 624 [2d Dept 2002]).

Here, however, it cannot be inferred from defendants' one-year delay that defendants' motion was made merely in order to secure some sort of tactical advantage or to force a settlement. This action is not at an advanced stage of the litigation, but, rather, this motion has been made at the very onset of plaintiff's service of its complaint. Since, in July 2012, only the summons with notice was filed, defendants could not prevent Sladkus from representing plaintiff, and the fact that Schwartz merely engaged in settlement discussions could not constitute a waiver of the fundamental right to confidentiality from his former attorney, which Sladkus remains ethically bound to honor (see Hernandez v BBR Contracting Corp., 2009 NY Slip Op 30621[U] [Sup Ct, NY County 2009]). Contrary to Sladkus' arguments, defendants could not have moved earlier since plaintiff had not yet filed a complaint in this action.

In addition, Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.0 (j) states that "[i]nformed consent' denotes the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternatives." Pursuant to Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.9 (a), such informed consent must be made in writing. Here, inasmuch as no written informed consent was given by defendants regarding Sladkus' representation of plaintiff, no such consent or waiver occurred.

Consequently, defendants' motion for disqualification of Sladkus and Wolf [*11]Haldenstein ^[FN2] must be granted (see Albert Jacobs, LLP, 94 AD3d at 919; M.A.C. Duff, Inc. v ASMAC, LLC, 61 AD3d 828, 830 [2d Dept 2009]; Columbus Constr. Co., Inc., 20 AD3d at 384; Moccia v Weisfogel, 253 AD2d 800, 801 [2d Dept 1998]).

Accordingly, defendants' motion to disqualify Sladkus and Wolf Haldenstein from representing plaintiff in this matter is granted. In accordance with CPLR 321 (c), this action is stayed for a period of 30 days from the date of personal service of a copy of this order with notice of entry on plaintiff in order to afford it an opportunity to retain new counsel. All

other pending motions by the parties are held in abeyance pending retention of new counsel, and this matter is adjourned to December 18, 2013 for appearance of new counsel.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.