Summary
holding client's right to choose attorney of his choice should not be abridged "absent a clear showing that disqualification is warranted"
Summary of this case from Pallazzo v. ThomasOpinion
February 1, 1999
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
It is well settled that the disqualification of an attorney is a matter which rests. within the sound discretion of the court ( see, Fischer v. Deitsch, 168 A.D.2d 599). A party's entitlement to be represented in ongoing litigation by counsel of his own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted ( see, Feeley v. Midas Props., 199 A.D.2d 238), and the movant bears the burden on the motion ( see, S S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 N.Y.2d 437, 445; Matter of Reichenbaum v. Reichenbaum Silberstein, 162 A.D.2d 599). Although a hearing may be necessary where a substantial issue of fact exists as to whether there is a conflict of interest ( see, Poli v. Gara, 117 A.D.2d 786), the plaintiff's mere conclusory assertions that there is a conflict of interest are insufficient to warrant a hearing ( see, Giblin v. Sechzer, 97 A.D.2d 833). Here, the Supreme Court providently exercised its discretion in refusing to disqualify the defense counsel for Crystal O'Brien since the plaintiff failed to present anything more than sheer speculation as to the existence of a conflict of interest.
Moreover, in order "to invoke the drastic remedy" of striking a pleading for failure to disclose pursuant to CPLR 3126, the trial court "must determine that the party's failure to comply was the result of willful, deliberate and contumacious conduct or its equivalent" ( Beard v. Peconic Foam Insulation Corp., 149 A.D.2d 555, 556). The record does not support the plaintiff's contention that O'Brien's failure to be deposed was the result of willful, deliberate, and contumacious conduct.
The plaintiff's remaining contentions are without merit.
Joy, J. P., Krausman, Florio and Luciano, JJ., concur.