ORDERED,application set forth by Defendant Florence Baer and Defendant Jon Baer is denied in all respects and the application set forth by Defendant JDFB is denied in all respects.

The instant matter revolves around the potential disqualification of two attorneys. In the first action ("Action One"), Defendant Florence Baer, has moved to disqualify attorney John H. Mulvehill from representing Plaintiff Donna Tricarico ("Tricarico"). Defendant Jon Baer has also moved to disqualify John Mulvehill from representing Plaintiff Tricarico in Action One. In addition, Defendant Jon Baer has moved to disqualify attorney Barry Driesman from representing Defendant Florence Baer in Action One.

The first action ("Action One") is with respect to the dissolution of a particular business entity named Spa 25 D/B/A THE SPA 25, INC. and other aspects of the operation of this health club. In Action One, Plaintiff Donna Tricarico, a 50% shareholder in the aforementioned business entity, is suing her former business partner Defendant Florence Baer, who is also a 50% shareholder in the aforesaid business entity. In addition, Plaintiff is suing Jon Baer D/B/A JDFB INC., ("JDFB") and [*2]Ruth Ellen Sciarrino and Lawrence Sciarrino D/B/A Spa 25 of Selden, Inc.

Plaintiff Donna Tricarico alleges that she entered into a partnership agreement with Florence Baer on April 24, 2013. This alleged partnership was formed to operate "THE SPA 25" located at 750 Middle Country Road, Selden, New York. Plaintiff Donna Tricarico claims that pursuant to the partnership agreement she contributed $20,000 to the aforementioned business entity. Plaintiff Tricarico claims that Defendant Florence Baer contributed $10,000 to the business entity pursuant to the partnership agreement. Plaintiff Tricarico alleges that since the commencement of the partnership agreement, Defendant Florence Baer has willfully and materially breached the partnership agreement on numerous occasions. Plaintiff Tricarico further alleges that she demanded a mediation of this dispute pursuant to the terms of the partnership agreement and that Defendant Florence Baer has failed and/or refused to submit to mediation.

In Action One, Plaintiff Tricarico is suing Defendant Florence Baer for breach of contract, breach of fiduciary duty, negligent performance of work, unjust enrichment, dissolution of partnership, accounting, fraud & deceit and fraudulent concealment by the fiduciary.

Also in Action One, Plaintiff Tricarico is suing Defendant JDFB, Inc., ("JDFB") a domestic corporation organized and existing under the laws of New York State. Plaintiff alleges that Defendant Jon Baer has been and is currently the duly elected president and director of JDFB. Plaintiff further alleges that on May 6, 2014, Defendant JDFB agreed to sell all right, title and interest to the day spa located at 750 Middle Country Road, Selden, New York to a third party, namely Defendant Spa 25 of Selden, Inc., a domestic corporation organized under the laws of New York State.

Plaintiff Tricarico alleges that on June 2, 2014, Defendant JDFB sold and transferred all right, title, and interest to the day spa located at 750 Middle Country Road, Selden, New York, to Defendant Spa 25 of Selden, Inc. Plaintiff Tricarico alleges that all Defendants knew or should have known that there was a binding partnership agreement between Plaintiff Tricarico and Defendant Florence Baer. Plaintiff Tricarico alleges that Defendant Ruth Ellen Sciarrino has been and is currently the duly elected president and director of Spa 25 of Selden, Inc. Plaintiff further alleges that both Defendant Ruth Ellen Sciarrino and Defendant Lawrence Sciarrino Jr. agreed to become debtors to the purchase of the day spa located at 750 Middle Country Road, Selden, New York.

Plaintiff Tricarico alleges that Jon Baer, individually and D/B/A JDFB, Defendant Lawrence Sciarrino Jr. and Ruth Ellen Sciarrino, individually and D/B/A Spa 25 of Selden, Inc. committed an unlawful conversion and/or trespass and/or taking of property belonging to the alleged partnership and/or trespass to personal property.

Plaintiff Donna Tricarico's attorney in Action One is John H. Mulvehill. Defendant Florence Baer's attorney in this action is Barry Driesman.

The second action NALYIA BLAIR v. THE SPA 25, INC., et al. ("BLAIR action") is currently pending in Suffolk County Supreme Court. This is action is pending in a different part, [*3]does not involve a commercial action and is not pending in the Commercial Division of the Suffolk County Supreme Court. This matter involves a former customer of the aforesaid business entity who is currently suing the spa. Plaintiff in the BLAIR action claims that one of the employees of Spa 25 injured her during a routine laser hair removal treatment. Plaintiff Naylia Blair is suing for negligence, fraudulent misrepresentation, breach of contract and deceptive practices.

This Court notes that in the BLAIR action, attorney John H. Mulvehill is not the attorney of record for Defendant THE SPA 25, Inc. Mr. Mulvehill has signed one stipulation in this matter. Simply signing one stipulation shall not force Mr. Mulvehill to become the attorney of record in the BLAIR action.

On the other hand, Plaintiff attorney John H. Mulvehill sets forth various arguments explaining as to why he should not be disqualified from representing the Plaintiff in the Action One. He alleges, among other things, that the motion to disqualify set forth by the Defendant is premature, Defendant lacks standing to bring the aforementioned motion, no conflict of interest exists because he has never represented Defendant Florence Baer and that he has never acted adversely to Defendant Florence Baer.

Also in the Action One, Defendant Jon Baer has moved to disqualify Barry Driesman from representing Defendant Florence Baer. Defendant Jon Baer claims that Mr. Driesman represents Florence Baer in Action One and represents JDFB in BLAIR. Defendant further alleges that in BLAIR Mr. Driesman's representation of JDFB is adverse to the interests of Florence Baer, as they are "de jure codefendants", due to the dissolution of THE SPA 25, Inc.

This Court must decide whether John H. Mulvehill should be disqualified from representing Plaintiff Tricarico in the Action One and whether Barry Driesman should be disqualified from representing Defendant Florence Baer in Action One.Legal Discussion

A party seeking disqualification of its adversary's lawyer 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 (see: Solow v WR Grace & Co, 83 NY2d [*4]at 308). Satisfaction of these three criteria by the moving party gives rise to an irrebuttable presumption of disqualification (id., at 309).

With regard to the potential disqualification of John H. Mulvehill in Action One, assuming, arguendo, that Defendant Florence Baer and Defendant Jon Baer can satisfy the first prong of the aforementioned test and prove the existence of a prior attorney-client relationship between Mr. Mulvehill and Donna Tricarico, the second prong of the test cannot be satisfied here because the matters involved in both representations are not substantially related. The first case, Action One, involves a commercial action being adjudicated in the Commercial division of the Suffolk County Supreme Court. The second case, BLAIR, primarily involves a tort action being adjudicated in the Civil division of the Suffolk County Supreme Court. Thus, this Court finds that the aforementioned representations are not substantially related and the aforesaid test cannot be satisfied.

With regard to Defendant Jon Baer's motion to disqualify Barry Driesman from representing Defendant Florence Baer in Action One, this court shall again apply the aforementioned three-pronged test. Assuming, arguendo, that the first prong is satisfied, this Court then must address the second prong. The argument set forth by Defendant, that the matters involved are substantially related because all parties seek relief from the same liquid assets, is entirely unavailing. There is simply no precedent to support such a contention. Furthermore, the matters involved are not substantially related because Action One is a commercial action and Blair is a tort action.

Accordingly, since the matters involved in the aforesaid representations are not substantially related, this Court shall deny the motions set forth by Defendant Florence Baer and Defendant Jon Baer to disqualify Mr. Mulvehill from representing Plaintiff Tricarico in BLAIR. This Court shall also deny the motion set forth by Defendant JDFB to disqualify Mr. Driesman from representing Defendant Florence Baer in Action One.

Dated: February 23, 2015