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Decided on May 6, 2011
Supreme Court, Nassau County

Rodeo Family Enterprises, LLC, in its individual capacity, and
derivatively on behalf of OYSTER BAY GROUP, LLC, and SAMIR M.
SHAH, Plaintiffs,

against


Scott Matte, NEIL MATTE, NMY CORP., S & CM ENTERPRISES,
LLC, OYSTER BAY GROUP, LLC and HERTZ, HERSON & CO.,
LLP, Defendants, - and - OYSTER BAY GROUP, LLC, Nominal
Defendant.









600378/2010
Ronald Herzog Robinson Brog Leinwald Greene Genovese & Gluck, P.C. 875 Third Ave New York, NY 10022 Counsel for Hertz Herson & Co. LLP Davidoff, Malitto & Hutcher 605 Third Ave. New York , NY 10158 Counsel for Matte and OBG Ira B. Warshawsky, J.
The following documents were read on this motion:
Order to Show Cause for TRO and Preliminary Injunction..........1.
Affirmation of Chris McDonough in Support of Motion..........2.
Affidavit of Thomas Filardo in Support of Motion....................3.
Affirmation of Ronald S. Herzog in Support of Motion ...................4.
Hertz, Herson & Company Memorandum of Law in Support.........5.
Affirmation of Michael G. Zapson in Opposition to Motion.........6.
Affidavit of Michael Wexelbaum in Opposition to Motion.........7.
Hertz, Herson & Company Reply Memorandum in Further Support8.

PRELIMINARY STATEMENT

Snow Becker Krauss P.C ("SNB"), counsel for Hertz, Herson & Co., move to disqualify the firm of Davidoff, Malito & Hutcher from representing defendants Oyster Bay Group, LLC ("OBG") as well as defendants Scott Matte, Neil Matte, NY Corp. and S & CM Enterprises, LLC (the "Matte defendants").


BACKGROUND
Michael Wexelbaum was an employee of SNB until January 28, 2011, when he
became a contract partner at Davidoff Malito. SNB represents Hertz Herson, a co-defendant of the Matte defendants, whom Davidoff Malito seeks to represent. The Matte defendants have interposed cross-claims against Hertz Herson. According to the affidavit of Thomas Filardo, Esq., an associate a SBK, he prepared a memorandum of law in support of a motion to dismiss certain cross-claims of OBG and the Matte Defendants. Because the senior attorney at the firm with whom he had been working, Ronald S. Herzog, was unavailable for medical reasons, he submitted the memorandum to Mr. Wexelbaum for review. It appears that Mr. Wexelbaum spent 3.8 hours in editing and discussing the memorandum.
Approximately one month later, Mr. Wexelbaum became a contract partner at Davidoff Malito. Thereafter, the Matte defendants sought the representation of Mr. Wexelbaum's new firm, Davidoff Malito, on this matter. Mr. Wexelbaum met with the Matte defendants to discuss their representation, and after seeing the pleadings on the case, realized that his prior firm represented an adverse party, Hertz Herson. After Hertz Herson declined to provided written, informed consent to Davidoff Malito's representation, and Davidoff Malito sought to appear on behalf of the Matte defendants, Hertz Herson interposed a motion to disqualify Davidoff Malito and Mr. Wexelbaum.

DISCUSSION
"The disqualification of an attorney is a matter that rests within the sound discretion of the court." (Nationwide Assoc., Inc. v. Targee Street Intern. Med. Gr., P.C., 303 AD2d 728, 728 [2d Dept. 2003]). While the Rules of Professional Conduct are the starting point for a motion to disqualify on the basis of a conflict of interest, the Court of Appeals has warned that the Rules [*2]should not be applied mechanically without regard to the "significant adverse consequences [that disqualification would pose] to the client and others," (Kassis v. Teacher's Ins. and Ann. Ass., 93 NY2d 611, 617 [1999]), as well as consideration of client choice, an attorney's ability to practice, and the risk that disqualification motions may be used merely for tactical reasons (id. at 616-17).
Indeed, a mechanical application of the Rules of Professional Conduct in this case would probably result in the disqualification of Mr. Wexelbaum and Davidoff Molito. Rules 1.9(a) and 1.10(a) of the Rules of Professional Conduct provide as follows:[FN1] 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.
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1.10
(a)While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7, 1.8 or 1.9, except as otherwise provided therein.
While "represented" is undefined, the New York State Bar Association suggested in its Ethics Opinion 723 (10/12/99) that if an attorney "work[s] on a pending matter" while associated with one firm, that firm's client becomes that attorney's "former client" (to whom he owes duties of loyalty and confidentiality) when he moves to a new firm that may perform work on the same pending matter. Under New York's case law, the result is not as clear, although Davidoff Malito admits that "[s]ome of the case law... could be seen as supporting an argument that where, as here, the work performed by Mr. Wexelbaum was recorded and billed to the former client... Mr. Wexelbaum would be determined to have personally represented' the plaintiff such as to personally disqualify Mr. Wexelbaum under Rule 1.9(a)." (Gartner Aff. at

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