Foley v. Foley

Foley v Foley (2014 NY Slip Op 08958)

Foley v Foley

2014 NY Slip Op 08958

Decided on December 24, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 24, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
SHERI S. ROMAN
COLLEEN D. DUFFY
BETSY BARROS, JJ.

2014-02388
(Index No. 31163/11)

[*1]Heather A. Foley, respondent,

v

J. Garth Foley, appellant.

James Nemia, New York, N.Y., for appellant.

Edwards & Rockmore, P.C., Garden City, N.Y. (Harrison J. Edwards, Sr., and Jonathan E. Edwards of counsel), for respondent.

DECISION & ORDER

In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Suffolk County (Santorelli, J.), dated November 19, 2013, which granted the plaintiff's motion to disqualify the defendant's attorney from representing the defendant in this action.

ORDERED that the order is affirmed, with costs.

The plaintiff met her burden of showing that counsel for the defendant and his law firm should be disqualified on the ground of a conflict of interest (see Rules of Professional Conduct [22 NYCRR 1200.0] rules 1.7, 7.5; Greene v Greene, 47 NY2d 447, 452; Faustini v Palladino, 280 AD2d 291, 293-294), and because the defendant's counsel is needed to testify as a witness in this action (see Fernandes v Jamron, 9 AD3d 379, 380; Elizabeth St., Inc. v 217 Elizabeth St. Corp., 301 AD2d 481, 482; Wensley & Partners v Polimeni, 262 AD2d 311, 311-312). Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff's motion to disqualify the defendant's attorney from representing the defendant in this action (see Fernandes v Jamron, 9 AD3d at 380; Wensley & Partners v Polimeni, 262 AD2d at 311-312; North Shore Neurosurgical Group v Leivy, 72 AD2d 598, 599).

RIVERA, J.P., ROMAN, DUFFY and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court