At page 476 Disqualifying counsel and protecting child's due process rights20 citing cases“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 absent a clear showing that disqualification is warranted . . . and the movant bears the burden on the motion.”
- T.I. v. R.I., 2025 NY Slip Op 50115(U) (N.Y. Sup. Kings 2025).unpublished Campolongo , 2 AD3d 476, 476 [2003] [citation omitted]; see Matter of Aaron W. v Shannon W. , 96 AD3d 960, 962 [ 2 Dept.,2012]).
- Matter of Rovner v. Rantzer, 145 A.D.3d 1016 (N.Y. App. Div. 2d Dep't 2016).publishedA 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 absent a clear showing that disqualification is warranted, and the movant bears the burden o…
- Giammona v. 72 Mark Lane, LLC, 143 A.D.3d 941 (N.Y. App. Div. 2d Dep't 2016).publishedThe Supreme Court providently exercised its discretion in denying that branch of the appellants’ motion which was to disqualify Polizzotto & Polizzotto, LLC, from representing Rose and John in the action. “ ‘A party’s entitlement to be rep…
- Matter of Nenninger v. Kelly, 140 A.D.3d 961 (N.Y. App. Div. 2d Dep't 2016).published“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 absent a clear showing that disqualification is warranted, and the movant bears the burden…
- Curanovic v. Cordone, 140 A.D.3d 823 (N.Y. App. Div. 2d Dep't 2016).published“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 absent a clear showing that disqualification is warranted” (Campolongo v Campolongo, 2 AD3d…
- Rodriguez v. Feldman, 126 A.D.3d 1557 (N.Y. App. Div. 4th Dep't 2015).published The allegedly unauthorized evaluations implicated the child’s due process rights as opposed to the due process rights of the grandmother (see Matter of Awan v Awan, 75 AD3d 597, 599 [2010]; Matter of Marvin Q., 45 AD3d 852, 853 [2007], lv…
- Grovick Props., LLC v. 83-10 Astoria Boulevard, LLC, 120 A.D.3d 471 (N.Y. App. Div. 2d Dep't 2014).publishedA 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 absent a clear showing that disqualification is warranted, and the movant bears the burden o…
- Madris v. Oliviera, 97 A.D.3d 823 (N.Y. App. Div. 2d Dep't 2012).published Although a violation of the rule against ex parte communications will support a motion seeking an attorney’s disqualification, including situations where the party is a child (see Matter of Brian R., 48 AD3d at 576 ; Matter of Marvin Q. ,…
- Aaron W. v. Shannon W., 96 A.D.3d 960 (N.Y. App. Div. 2d Dep't 2012).published 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 absent a clear showing that disqualification is warranted, and the movant bears the burden o…
- Scopin v. Goolsby, 88 A.D.3d 782 (N.Y. App. Div. 2d Dep't 2011).published“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 warran…
Show 6 more citing cases
- Parnes v. Parnes, 80 A.D.3d 948 (N.Y. App. Div. 3d Dep't 2011).publishedConsidering all of the circumstances here, we find that Supreme Court abused its discretion in imposing the harsh sanction of disqualification of plaintiffs counsel in addition to suppressing the confidential e-mails (see id.; compare Matt…
- Awan v. Awan, 75 A.D.3d 597 (N.Y. App. Div. 2d Dep't 2010).publishedThe father’s attorney violated the Rules of Professional Conduct (22 NYCRR 1200.0) rule 4.2 by allowing a physician, whom the attorney retained or caused the father to retain, to interview and examine the subject child regarding the pendin…
- In re Marvin Q., 45 A.D.3d 852 (N.Y. App. Div. 2d Dep't 2007).published 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 warrant…
- Schertz v. Jenkins, 4 Misc. 3d 298 (N.Y. City Civ. Ct. 2004).published“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 absent a clear showing that disqualification is warranted . . . and the movant bears the bu…
- In re the Adoption of Baby Boy C., 5 Misc. 3d 377 (N.Y.C. Fam. Ct. 2004).published
- Matter of Baby Boy C., 2004 NY Slip Op 24302 (N.Y.C. Fam. Ct. 2004).published
v.
Sergio Campolongo, Irwin Weisberg, Nonparty
In a. matrimonial action in which the parties were divorced by a judgment dated November 16, 2001, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Fitzmaurice, J.), dated September 19, 2002, as granted those branches of the Law Guardian’s motion which were to disqualify the defendant’s attorney and preclude the defendant from using a psychiatrist’s report and testimony as evidence in the pending custody dispute.
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 Olmoz v Town of Fishkill, 258 AD2d 447 [1999]; Fischer v Deitsch, 168 AD2d 599 [1990]). 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 absent a clear showing that disqualification is warranted (see Olmoz v Town of Fishkill, supra), and the movant bears the burden on the motion (see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131 [1996]; Solow v Grace & Co., 83 NY2d 303, 308 [1994]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445 [1987]).
Here, the defendant’s attorney violated Code of Professional Responsibility DR 7-104 (A) (1) (see 22 NYCRR 1200.35 [a] [1]) by allowing a psychiatrist, that he caused the defendant father to retain, to interview the subject child regarding the pending custody dispute and to prepare a report without the Law Guardian’s knowledge and consent. The appointment of a Law Guardian to protect the interests of a child creates an attorney-client relationship, and the absence of the Law Guardian at the subject interview constituted a denial of the child’s due process rights (see Matter of Samuel H., 208 AD2d 746, 747 [1994]; see [*477] also Family Ct Act § 241). Further, while the Supreme Court previously appointed a psychologist to conduct a forensic examination of the child and the parties herein, the defendant’s attorney failed to seek court permission for an additional forensic evaluation, and also failed to inform the attorney for the plaintiff of the interview by the defendant’s psychiatrist.
Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting those branches of the Law Guardian’s motion which were to disqualify the defendant’s attorney and to preclude him from using the psychiatrist’s report and testimony as evidence in the pending custody dispute. Friedmann, J.P., H. Miller, Townes and Cozier, JJ., concur.