In an October 14, 2011, decision by Justice Driscoll, the court denied plaintiffs’ motion to disqualify defendants’ counsel. Plaintiffs and defendants, owners of significant membership interests in an LLC that provided MRI diagnostic services, were involved in two lawsuits – one commenced in July 2005 and the other in April 2011 – involving allegedly improper removal and/or termination of members from the business. Plaintiffs contended on their motion that the law firm representing defendants in the 2011 lawsuit should be disqualified because of its representation of plaintiffs in the 2005 lawsuit, which plaintiffs claimed was a related action. Defendants contended that the claims in each of the lawsuits were entirely unrelated and that plaintiffs failed to show that the law firm was in possession of privileged information. The court denied plaintiffs’ motion, finding that they failed to establish that the two lawsuits were substantially related, especially in light of the chronology of key events underlying, and parties named in, the two lawsuits. The court also found that plaintiffs failed to show that the law firm, in its previous representation, had access to any confidential material related to the 2011 lawsuit.
Kalish v Fernandez, Sup Ct, Nassau County, October 14, 2011, Driscoll, J., Index No. 6179/2011