Micheli v. E.J. Builders, Inc. , 659 N.Y.S.2d 371 ( 1997 )

Crew III, J.

Appeal from an order of the Supreme Court (Ceresia, Jr., J.), entered July 8, 1996 in Rensselaer County, which granted plaintiffs motion to disqualify defendants’ counsel.

Plaintiff and defendants Elio Micheli and Joseph Micheli are brothers who hold interests in several family-owned corporations, partnerships and businesses (hereinafter the Micheli entities). The principal Micheli entity is Micheli Contracting Corporation, which is engaged in the business of real property site development.

In 1988, Salvatore Clemente obtained approvals to construct townhouses on a subdivision known as Hillcrest in the Town of Colonie, Albany County. Lacking the expertise to develop the infrastructure or construct the townhouses, he entered into an agreement with plaintiff, Elio Micheli, Joseph Micheli and Robert Mitchell, president of Citation Builders, Inc., to form a corporation known as M.C.M. Land Developers, Inc., which would purchase Hillcrest. Pursuant to that agreement Kaydeross Contracting Corporation, a subsidiary of Micheli Contracting, would develop the site, M.C.M. would sell the improved lots to Citation and Citation would, in turn, build the townhouses.

In conjunction therewith, Mitchell requested that his wife, Beverly Mitchell, an attorney with McNamee, Lochner, Titus & Williams, P. C., incorporate M.C.M., which she did. Additionally, Beverly Mitchell thereafter represented M.C.M. in connection with a $1,200,000 loan used to purchase Hillcrest. Not long after the incorporation of M.C.M., Citation encountered financial difficulties and was unable to continue building the townhouses at Hillcrest. After unsuccessfully trying to retain another contractor for the construction of the townhouses, Elio Micheli and Joseph Micheli decided to form defendant E.J. Builders, Inc. for that purpose. At their request Beverly Mitchell formed said corporation, in which Elio Micheli and Joseph Micheli were the sole shareholders. In 1993 Elio Micheli and Joseph Micheli had Beverly Mitchell incorporate defendant Period Classics, Inc., in which they also were the sole shareholders, to construct single-family homes on properties owned by, inter alia, Micheli Contracting.

Plaintiff thereafter commenced this action on behalf of the Micheli entities against, among others, his brothers alleging, inter alia, that the purposes of E.J. Builders and Period Classics were identical to those of Micheli Contracting, that such entities were formed for the purpose of diverting business opportunities rightfully belonging to Micheli Contracting and the other Micheli entities, and that E.J. Builders and Period Classics were capitalized and financed with funds belonging to the Micheli entities, for which plaintiff sought money damages. Shortly after commencement of this action, plaintiff sought to disqualify the McNamee Lochner law firm from representing defendants on the grounds that Beverly Mitchell’s prior representation of M.C.M. and her representation of E.J. Builders and Period Classics constituted an impermissible conflict of interest, and, further, that Beverly Mitchell would be a necessary witness at trial. Supreme Court determined that such prior representation was adverse and substantially related to McNamee Lochner’s current representation of defendants and granted plaintiffs motion to disqualify the firm. This appeal by defendants ensued.

There must be a reversal. Turning first to plaintiffs claim that certain McNamee Lochner attorneys are necessary witnesses in this litigation, it is evident from the opposing affidavits that the principal attorney in charge of this litigation for McNamee Lochner will not be a witness at trial. It is axiomatic that under such circumstances, disqualification of the entire firm is not warranted (see, Talvy v American Red Cross, 205 AD2d 143, 152, affd 87 NY2d 826).

With regard to plaintiffs contention that Beverly Mitchell’s former representation of M.C.M., certain other Micheli entities, E.J. Builders and Period Classics is adverse and inextricably intertwined with McNamee Lochner’s current representation of defendants, we need only note that the affidavits in opposition to the motion to disqualify aver that Beverly Mitchell’s only involvement with certain of the Micheli entities was to review and update their corporate books. (It appears that some of the Micheli entities did not have records of certain shareholder and/or director meetings and had failed to issue original stock certificates to the shareholders.) Such work was done at the request of Elio Micheli’s accountant in the event of an audit by the Internal Revenue Service. The opposing affidavits further aver that Beverly Mitchell’s work in this regard and her incorporation of E.J. Builders and Period Classics constituted nothing more than implementation of decisions previously made by the individuals involved in those transactions and that she did not counsel said individuals in reaching those decisions. It is further asserted that she never acted as general counsel to any of the entities that are the subject of this litigation. Indeed, it is asserted that defendants used other law firms to perform such services.

Under the circumstances, the moving papers, at best, present issues of fact as to whether the matters involved in Beverly Mitchell’s prior representations and McNamee Lochner’s present representation are substantially related. As these issues can be resolved only upon a plenary hearing (see, Evyan Perfumes v Hamilton, 22 Misc 2d 616, 618, affd 12 AD2d 593), Supreme Court’s decision to grant plaintiff’s motion to disqualify McNamee Lochner was premature.

White, Yesawich Jr. and Peters, JJ., concur.