State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: April 7, 2016 521683 

________________________________

CHARLES W. McCUTCHEN,

Appellant,

v

3 PRINCESSES AND A P TRUST MEMORANDUM AND ORDER

DATED FEBRUARY 3, 2004, 

et al.,

Respondents.

________________________________

Calendar Date: February 9, 2016

Before: Peters, P.J., McCarthy, Egan Jr. and Lynch, JJ.

__________

Law Office of James M. Brooks, Lake Placid (James M. Brooks

of counsel), for appellant.

John J. Randall IV, Locust Valley, and Wilkins & Griffin,

PLLC, Lake Placid (Michael J. Hutter of Powers and Santola, LLP,

Albany, of counsel), for respondents. 

__________

Egan Jr., J.

Appeal from an order of the Supreme Court (Muller, J.),

entered April 24, 2015 in Essex County, which, among other

things, granted a motion by defendant Randall Family Trust, U/A

Dated 12-14-12 to disqualify plaintiff's attorney.

Plaintiff is the owner of certain real property fronting

the western shore of Lake Placid in the Town of North Elba, Essex

County. Defendant 3 Princesses and A P Trust Dated February 3,

2004 (hereinafter 3 Princesses) owns a parcel of land lying to

the south of and adjacent to plaintiff's property; south of and

adjacent to that property are additional parcels of land owned by
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the remaining named defendants, including a parcel owned by

defendant Randall Family Trust. The nearest public road to all

of these properties is County Route 31 – also known as Whiteface

Inn Road. Travel between this public road and the respective

parcels is accomplished via a private roadway known as Blodgett

Road, which extends northeasterly from Whiteface Inn Road and

runs adjacent to and/or over the boundary lines of defendants'

respective parcels and, according to plaintiff, extends onto his

land as well.

In March 2006, 3 Princesses' predecessors in title – Harold

Krieger and Roberta Russell Krieger – commenced an action

against, insofar as is relevant here, John Randall III and

Annelie Randall seeking to adjudicate the rights of the Randalls

to traverse the portion of Blodgett Road that crossed over what

was then the Kriegers' property. The Randalls hired a local

attorney, James Brooks, to represent them in that matter, which

ultimately was resolved by the execution of a supplemental

easement agreement among Annelie Randall, 3 Princesses,

defendants HOM Greentop Limited Partnership (hereinafter

Greentop), Tamaracks Partners, Harold William Davis III, Sibyl D.

Quayle and another unrelated individual. Pursuant to the terms

of the supplemental easement agreement, "all of the terms,

conditions and covenants contained [there]in shall run with the

land and shall forever bind and inure to the benefit of the

parties [there]to and their heirs, successors and assigns." Deed

transfers within the Randall family thereafter ensued for estate

planning purposes, and title to the parcel formerly owned by the

Randalls now is held by the Randall Family Trust. 

In February 2011, 3 Princesses erected a locked gate across

Blodgett Road, thereby denying plaintiff, who allegedly had been

traversing such roadway to access his property since 1956, the

use thereof. As a result, plaintiff retained Brooks to commence

this RPAPL article 15 action against defendants seeking, among

other things, a declaration that plaintiff had a prescriptive

easement and right-of-way on and over Blodgett Road from his

parcel of land to the point where such roadway joins Whiteface

Inn Road. Greentop, Tamaracks Partners and the Randall Family

Trust answered and raised, as an affirmative defense, the failure

to join a necessary party, i.e., Whiteface Holdings LLC, while 3
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Princesses, Davis and Quayle filed a pre-answer motion to dismiss

the complaint upon the same ground.1 Additionally, the Randall

Family Trust moved to disqualify Brooks from acting as

plaintiff's attorney – citing Brooks' prior representation of

John Randall III and Annelie Randall in connection with the

easement rights governing the property now held by the trust. 

Supreme Court, among other things, denied the motion to dismiss

the complaint, but ordered that Whiteface Holdings be joined as a

necessary party, and granted the motion to disqualify Brooks from

representing plaintiff in this action. Plaintiff now appeals.

We affirm, albeit for reasons other than those expressed by

Supreme Court. Pursuant to Rules of Professional Conduct (22

NYCRR 1200.0) rule 1.9 (a), "[a] lawyer who has formerly

represented a client in a matter shall not thereafter represent

another person in the same or a substantially related matter in

which that person's interests are materially adverse to the

interests of the former client unless the former client gives

informed consent, confirmed in writing" (see Kain Dev., LLC v

Krause Props., LLC, 130 AD3d 1229, 1231 [2015]).2 Accordingly,

where, as here, a party is seeking to disqualify its adversary's

counsel based upon counsel's purported prior representation of

the moving party, such party "must establish (1) the existence of

a prior attorney-client relationship between the moving party and

opposing counsel, (2) that the matters involved in both

representations are substantially related, and (3) that the

interests of the present client and former client are materially

adverse" (Gjoni v Swan Club, Inc., 134 AD3d 896, 897 [2015]

[internal quotation marks and citations omitted]; accord

Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 98 [2008]; see

Falk v Chittenden, 11 NY3d 73, 78 [2008]; Matter of Peters, 124

AD3d 1266, 1267 [2015]). If "the moving party is able to

1 Greentop and Tamaracks Partners subsequently joined in

the motion to dismiss.

2 The Rules of Professional Conduct supersede the former

Code of Professional Responsibility, and Rules of Professional

Conduct (22 NYCRR 1200.0) rule 1.9 (a) is the counterpart to

former Code of Professional Responsibility DR 5-108 (a) (1).
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demonstrate each of these factors, an irrebuttable presumption of

disqualification follows" (Pellegrino v Oppenheimer & Co., Inc.,

49 AD3d at 98; see Falk v Chittenden, 11 NY3d at 78; Jamaica Pub.

Serv. Co. v AIU Ins. Co., 92 NY2d 631, 636 [1998]; Tekni-Plex,

Inc., v Meyner & Landis, 89 NY2d 123, 132 [1996]; Matter of

Peters, 124 AD3d at 1267; Anonymous v Anonymous, 262 AD2d 216,

216 [1999]).

That said, even in instances where the irrebuttable

presumption does not attach and, hence, disqualification is not

mandatory, disqualification nonetheless may be warranted

depending upon the particular facts and circumstances of a given

case (see Halberstam v Halberstam, 122 AD3d 679, 679-680 [2014];

Anonymous v Anonymous, 262 AD2d at 216; see also Mineola Auto.,

Inc. v Millbrook Props., Ltd., 118 AD3d 680, 680-681 [2014]). In

this regard, "[i]t is well settled that an attorney must avoid

not only the fact, but even the appearance, of representing

conflicting interests" (Matter of Strasser, 129 AD3d 457, 458

[2015] [internal quotation marks and citation omitted]; see Rose

Ocko Found. v Liebovitz, 155 AD2d 426, 427 [1989]). To that end,

"[a]n attorney may not place himself [or herself] in a position

where a conflicting interest may, even inadvertently, affect, or

give the appearance of affecting, the obligations of the

professional relationship" (Roddy v Nederlander Producing Co. of

Am., Inc., 96 AD3d 509, 509 [2012] [internal quotation marks and

citations omitted]; see Matter of Strasser, 129 AD3d at 458;

Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344 [2005]). 

"The disqualification of an attorney is a matter that rests

within the sound discretion of the court" (Gjoni v Swan Club,

Inc., 134 AD3d at 897 [internal quotation marks and citation

omitted]; accord Matter of Town of Oyster Bay v 55 Motor Ave.

Co., LLC, 109 AD3d 549, 550 [2013]; Flores v Willard J. Price

Assoc., LLC, 20 AD3d at 344; see Cohen v Cohen, 125 AD3d 589, 590

[2015]), and the case law makes clear that "[a]ny doubts as to

the existence of a conflict of interest must be resolved in favor

of disqualification so as to avoid even the appearance of

impropriety" (Gjoni v Swan Club, Inc., 134 AD3d at 897; see

Matter of Tartakoff v New York State Educ. Dept., 130 AD3d 1331,

1333 [2015]; Matter of Strasser, 129 AD3d at 458; Mineola Auto.,

Inc. v Millbrook Props., Ltd., 118 AD3d at 680-681; Roddy v

Nederlander Producing Co. of Am., Inc., 96 AD3d at 509).
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As to the issue of whether Brooks' disqualification here

was mandatory, there is little question that the second and third

prongs of mandatory disqualification test – substantially related

matters and materially adverse interests – were satisfied. 

Despite plaintiff's attempt to draw a distinction between the

nature of the easement rights asserted by him in this action and

the rights held by the Randall Family Trust under the terms of

the supplemental easement agreement, we find there to be a

readily identifiable nexus between the subject matter of this

action and the prior litigation involving Brooks' clients, John

Randall III and Annelie Randall (compare Nicola v Barrett, 43

AD3d 583, 585 [2007]; Hunkins v Lake Placid Vacation Corp., 120

AD2d 199, 202 [1986]). The first prong of the test – whether a

prior attorney-client relationship existed between Brooks and the

Randall Family Trust – presents a much closer question,

particularly given Brooks' denial that he ever represented the

Randall Family Trust in any capacity and the corresponding lack

of documentation and, hence, clarity as to the identity of the

trust's fiduciaries or beneficiaries. That said, even assuming –

without deciding – that the irrebuttable presumption of

disqualification was not triggered and, therefore, Brooks'

disqualification was not mandatory, we nonetheless are persuaded

that such disqualification was warranted in order to avoid the

appearance of impropriety.

In reaching this conclusion, we are not suggesting that

Brooks engaged in any improper or unethical conduct in this

matter. The fact remains, however, that Brooks' current client

(plaintiff) is attempting to obtain prescriptive easement rights

over Blodgett Road, and it is readily apparent that the rights

asserted by plaintiff in this regard may well implicate, conflict

with or impinge upon the easement rights previously acquired by

defendants under the supplemental easement agreement –

specifically, the easement rights that Brooks secured for his

former clients (John Randall III and Annelie Randall) relative to

property now held by the Randall Family Trust. Additionally,

although Brooks disputes the assertion, John Randall IV averred

that "numerous private conversations between the Randall Family"

and Brooks occurred relative to the use of Blodgett Road,

including conversations that "each of the members of the Randall

Family had with [plaintiff] with regard to [plaintiff's] use of
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the [road]." Under these circumstances, and "considering the

settled principle that doubts as to the existence of a conflict

of interest must be resolved in favor of disqualification so as

to avoid even the appearance of impropriety" (Mineola Auto., Inc.

v Millbrook Props., Ltd., 118 AD3d at 680-681 [internal quotation

marks and citation omitted]), Supreme Court's order

disqualifying Brooks from representing plaintiff in this matter

is affirmed. Plaintiff's remaining contention – that Supreme

Court erred in ordering that Whiteface Holdings be joined as a

necessary party – has been examined and found to be lacking in

merit.

Peters, P.J., McCarthy and Lynch, JJ., concur.

ORDERED that the order is affirmed, with costs.

ENTER:

Robert D. Mayberger

Clerk of the Court