Preview
FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018
NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
________________________________________________
In the Matter of the Application of
CHAUTAUQUA INSTITUTION,
Petitioner, Index No.: 812002/2018
Hon. Donna M. Siwek
vs.
NEW YORK STATE DEPARTMENT OF
ENVIRONMENTAL CONSERVATION and
TOWN OF ELLERY
Respondents.
_________________________________________________
MEMORANDUM OF LAW IN OPPOSITION TO THE CHAUTAUQUA
INSTITUTION’S MOTION TO DISQUALIFY COUNSEL
On October 16, 2018, as part of its opposition to the Chautauqua Lake
Partnership, Inc.’s (“CLP”) motion to intervene as a respondent in this proceeding, the
Chautauqua Institution (“Institution”) argued that the law firm of Rupp Baase Pfalzgraf
Cunningham, LLC (“Rupp Baase”) and specifically the undersigned should be disqualified from
representing CLP in this matter. See NYSCEF Doc. No. 68. On October 18, 2018, this Court
requested further briefing on the issue. For the reasons stated below, the Institution’s motion
should be denied in full.
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STANDARD
A party seeking to disqualify an opponent’s counsel bears a heavy burden to
prove “that the testimony of the subject attorneys would be both necessary and prejudicial to” the
moving party. Orbco Advisors LLC v 400 Fifth Realty LLC, 134 A.D.3d 448 (1st Dept. 2015)
(citing Dishi v. Federal Ins. Co., 112 A.D.3d 484 (1st Dept. 2013); Ullman-Schneider v. Lacher
& Lovell-Taylore PC, 110 A.D.3d 469, 470 (1st Dept. 2013); Rul. of Prof. Con., Rule 3.7). It is
incumbent on the moving party to prove that “it is likely that the testimony to be given by the
witness is necessary” and would not be cumulative of testimony that could be given by other
witnesses. Talvy v Am. Red Cross in Greater New York, 205 A.D.2d 143, 152 (1st Dept. 1994),
aff’d, 87 N.Y.2d 826 (1995) (quoting S & S Hotel Ventures Limited Partnership v.
777 S.H. Corp., 69 N.Y.2d 437, 445–46 (1987)). This heavy burden is imposed because
“[d]isqualification of a law firm during litigation implicates not only the ethics of the profession
but also the substantive rights of the litigants” in that it deprives a party of its right to
representation by counsel of its choice. S & S Hotel Ventures, 69 N.Y.2d at 443.
Rule 3.7 provides “guidance, not binding authority, for courts in determining”
whether disqualification is required. Ahrens v. Chisena, 40 A.D.3d 787, 787-88 (2d Dept. 2007).
That is because, “[w]hen raised in litigation . . . which in addition to matters of professional
conduct directly involves the interests of clients and others—the Code provisions cannot be
applied as if they were controlling statutory or decisional law.” S&S Hotel Ventures,
69 N.Y.2d at 443 In evaluating a motion to disqualify counsel, therefore, a court must consider
the fact that “in the context of an ongoing lawsuit, disqualification of a plaintiff’s law firm can . .
. redound[] to the strategic advantage of one party over another.” Id. (internal citations omitted).
The mere fact that an attorney “has relevant knowledge or was involved in an underlying
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proceeding dot not make that attorney’s testimony necessary.” Talvy, 205 A.D.2d at 152.
Instead, the moving party must establish what facts that the attorney would testify on and why
that testimony would be “strictly necessary” to the resolution of the action. S&S Hotel Ventures,
69 N.Y.2d at 445-46.
The Institution failed to meet this burden.
ARGUMENT
POINT I
COUNSEL’S INVOLVEMENT IN THE SEQRA PROCESS
AND IN THE DRAFTING OF THE SEIS IS NOT GROUNDS
FOR DISQUALIFICATION.
The Institution’s argument appears to be that counsel must be disqualified simply
because of its involvement in the New York State Environmental Quality Review Act
(“SEQRA”) process that resulting in the Town of Ellery Town Board’s issuance of the 2018
Supplemental Environmental Impact Statement (“SEIS”) for the application of herbicides to
Chautauqua Lake. But mere involvement in an underlying transaction is not a sufficient ground
to disqualify an attorney. S & S Hotel Ventures, 69 N.Y.2d at 445-46; Talvy, 205 A.D.2d at 152;
In re Will of Bodkin, 128 A.D.3d 1526, 1527 (4th Dept. 2015). And this makes sense.
Otherwise, an attorney who drafted a complaint would be subject to disqualification in a pending
proceeding on whether the complaint is legally sufficient to survive a motion to dismiss. Or an
attorney who advised a client on steps to take in a regulated setting would be automatically
disqualified from representing that party if the regulators found that the party’s actions did not
compel with those regulations.
And an attorney involved in a SEQRA process would be disqualified solely by
virtue of his or her involvement in that process. It is worth noting that a search of case law
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revealed no cases in which an attorney who assisted in the SEQRA process was subsequently
disqualified in an Article 78 action pursuant to Rule 3.7. It is also worth noting that although
SEQRA was drafted with the intent that individuals could complete the process, in practice, the
process cannot be completed without legal counsel. It would put a heavy onus on and be
inequitable to municipalities and project sponsors if their chosen counsel on the SEQRA process
were later barred from representing them as a matter of course if that process was challenged.
Therefore, unless the Institution can prove –– and it cannot –– that it is likely that
counsel will be a necessary witness on a significant issue of fact, the motion must be denied.
POINT II
THE INSTITUTION FAILED TO POINT TO ANY ISSUE
OF FACT ON WHICH COUNSEL’S TESTIMONY WOULD
BE REQUIRED.
Rule 3.7(a) provides that “a lawyer shall not act as an advocate before a tribunal
in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” The
moving party bears the heavy burden to “to identify the projected testimony of the witness and
show that it would be so adverse to the factual assertions or account of events offered on behalf
of the client as to warrant his [or her] disqualification.” Bodkin, 128 A.D.3d at 1527 (citing
Martinez v. Suozzi, 186 A.D.2d 378, 379 (1st Dept. 1992)). The Institution fails to identify any
testimony counsel would need to give on a significant factual issue let alone explain why such
testimony would be prejudicial to the Institution.
Instead, the Institution makes vague references to “details underlying the
preparation of the SEIS and its legal sufficiency.” These vague references do not satisfy the
Institution’s heavy moving burden. See Bodkin, 128 A.D.3d at 1527 (citing Vecchiarelli v.
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Continental Ins. Co., 216 A.D.2d 909, 910 (4th Dept. 1995); Transcontinental Constr. Servs. v.
McDonough, Marcus, Cohn & Tretter, 216 A.D.2d 19, 19 (1st Dept. 1995)). The motion should
be denied for this reason alone.
At this point, it is difficult to respond to the Institution’s motion without knowing
what facts the Institution contends counsel will need to testify on or whether those facts are
significant. To the extent that the Institution argues that counsel would need to testify on issues
related to the legal sufficiency of the SEIS, such testimony does not implicate Rule 3.7(a).
S & S Hotel Ventures, 69 N.Y.2d at 445-46 (holding that Rule 3.7(a) does not require
disqualification “[w]hen the issue on which the lawyer will testify raises solely questions of
law”); see also Rules of Prof. Con., Rule 3.7.
What is more, questions regarding the legal sufficiency of an SEIS do not, in the
normal course, raise triable issues of fact on which any witnesses would be called in an Article
78 proceeding. Generally, an Article 78 proceeding is decided on the underlying record. 1 No
witnesses are called and no trial takes place. A trial only occurs when “a triable issue of fact is
raised.” See CPLR 7804(h). Questions of the legal sufficiency of underlying actions and whether
they are supported by record evidence do not raise triable issues of fact. See 475 Ninth Ave.
Assocs. LLC v. Bloomberg, 2 Misc. 3d 597, 604 (Sup. Ct. N.Y. Co. Dec. 2, 2003); Howard v.
Diamond, 76 Misc. 2d 809, 812 (Sup. Ct. Monroe Co. Jan. 7, 1974).
To date, the Institution has failed to raise a triable issue of fact and their moving
papers set forth no discrete factual issues on which a trial may be required. Even if a triable
issue of fact was raised, any testimony by counsel would at most be cumulative to information
that could be gleaned from other witnesses. The draft SEIS and final SEIS were drafted in
1
Of note, the underlying record here was compiled by the Town of Ellery and its counsel –– not
by Rupp Baase.
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substantial part by Wendel Engineering (a general SEQRA consultant), DK Water Resources (a
limnologist), and SOLitude Lake Management (a lake management company). See Cover Pages
of Final SEIS (dated April 2018) and Draft SEIS (dated Feb. 2018), attached as Exhibit A to the
Affirmation of Anne K. Bowling, Esq., executed on Oct. 23, 2018 (“Bowling Affirmation”).
Scientific and technical guidance was provided by biologist Dr. Thomas Erlandson and chemist
Dr. Douglas Neckers. CLP Vice President Jim Wehrfritz and regulatory advisors JoDee Johnson
and Frank Nicotra oversaw the drafting of the SEIS. Bowling Affirmation at ¶¶ 6-7. If this
matter proceeded to a trial, it would be these individuals who would testify regarding issues such
as herbicides’ effect on fish spawning and potable water resources – not the lawyers. Id. at ¶ 8.
Although counsel reviewed the draft and final SEIS and provided input thereon, the Institution
has pointed to no, non-cumulative factual testimony that counsel could offer that would not be
addressed by the experts. Id at ¶¶ 8-13, 17-18.
If, during the course of any hypothetical trial, questions were raised regarding
what occurred at public meetings or the comments raised, there are transcripts of these
proceedings and copies of the comments themselves in the record. Bowling Affirmation at ¶ 10.
No additional, non-cumulative testimony from counsel would be required. See Douglas v. New
York State Adirondack Park Agency, 895 F. Supp. 2d 321, 357-58 (N.D.N.Y. 2012). Therefore,
at most, any testimony from legal counsel would be cumulative, would not be prejudicial to the
Institution, and would not necessitate disqualification. S & S Hotel Ventures, 69 N.Y.2d at 443;
Bodkin, 128 A.D.3d at 1527.
In sum, none of the arguments raised by Institution satisfy its heavy burden to
prove that counsel should be disqualified and that CLP’s choice for representation should be
infringed upon. In the event this Court is inclined to grant the Institution’s motion to disqualify,
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such disqualification should only pertain to proceedings on the merits of the Institution’s petition
if the Institution raises a triable issue of fact and shows that counsel would be required to offer
material, prejudicial non-cumulative testimony regarding underlying factual issues. There is no
valid basis for disqualifying counsel from representing CLP on the pending motions to dismiss
the Institution’s petition. See Bowling Affirmation at ¶¶ 15-16.
Finally, even if this court determines that the undersigned should be disqualified
from representing CLP if the Court reaches the merits of the defendants’ motion and if a triable
issue of fact is raised on which counsel would be required to offer significant, non-cumulative
testimony, the Institution offers no reason why Rupp Baase as a whole should be disqualified.
See Talvy, 205 A.D.2d at 152 (holding that disqualification of entire firm was not warranted
when moving party only alleged one attorney might be required to testify).
POINT IV
RUPP BAASE DOES NOT HAVE AN IMPERMISSIBLE
FINANCIAL INTEREST IN THE OUTCOME OF THIS
PROCEEDING.
The Institution also argues that Rupp Baase cannot represent CLP in this matter
because it has an impermissible financial interest. See Rule 1.7(a)(2). During oral argument, the
Institution appeared to have abandoned this argument, but it is addressed here for the sake of
completeness.
Rupp Baase does not have any impermissible financial interest in the outcome of
this litigation. Rupp Baase was compensated for its work on the SEQRA process and is being
compensated for its work on this matter. The mere allegation that Rupp Baase could be open to
a malpractice claim if the SEIS is invalidated does not establish an impermissible financial
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interest. If it did, no attorney could ever take any action, including the filing of a Petition, that
might later be dismissed or otherwise found legally insufficient. Bowling Affirmation at
¶¶ 19-21. The Institution’s arguments for disqualification are a mere legal tactic, not supported
by the law or facts, served to infringe upon CLP’s choice of counsel. They should be denied.
CONCLUSION
The Institution has failed to meet its burden to prove that disqualification of Rupp
Baase and/or the undersigned is warranted in this matter. The Institution’s motion for
disqualification should be denied.
Dated: October 23, 2018 Respectfully submitted,
RUPP BAASE PFALZGRAF CUNNINGHAM
LLC
By:
Anne K. Bowling
John T. Kolaga
1600 Liberty Building
Buffalo, New York 14202
(716) 854-3400
bowling@ruppbaase.com
kolaga@ruppbaase.com
Attorneys for Chautauqua Lake Partnership, Inc.
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Preview
FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE ________________________________________________ In the Matter of the Application of CHAUTAUQUA INSTITUTION, Petitioner, Index No.: 812002/2018 Hon. Donna M. Siwek vs. NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION and TOWN OF ELLERY Respondents. _________________________________________________ MEMORANDUM OF LAW IN OPPOSITION TO THE CHAUTAUQUA INSTITUTION’S MOTION TO DISQUALIFY COUNSEL On October 16, 2018, as part of its opposition to the Chautauqua Lake Partnership, Inc.’s (“CLP”) motion to intervene as a respondent in this proceeding, the Chautauqua Institution (“Institution”) argued that the law firm of Rupp Baase Pfalzgraf Cunningham, LLC (“Rupp Baase”) and specifically the undersigned should be disqualified from representing CLP in this matter. See NYSCEF Doc. No. 68. On October 18, 2018, this Court requested further briefing on the issue. For the reasons stated below, the Institution’s motion should be denied in full. 1 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 STANDARD A party seeking to disqualify an opponent’s counsel bears a heavy burden to prove “that the testimony of the subject attorneys would be both necessary and prejudicial to” the moving party. Orbco Advisors LLC v 400 Fifth Realty LLC, 134 A.D.3d 448 (1st Dept. 2015) (citing Dishi v. Federal Ins. Co., 112 A.D.3d 484 (1st Dept. 2013); Ullman-Schneider v. Lacher & Lovell-Taylore PC, 110 A.D.3d 469, 470 (1st Dept. 2013); Rul. of Prof. Con., Rule 3.7). It is incumbent on the moving party to prove that “it is likely that the testimony to be given by the witness is necessary” and would not be cumulative of testimony that could be given by other witnesses. Talvy v Am. Red Cross in Greater New York, 205 A.D.2d 143, 152 (1st Dept. 1994), aff’d, 87 N.Y.2d 826 (1995) (quoting S & S Hotel Ventures Limited Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445–46 (1987)). This heavy burden is imposed because “[d]isqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants” in that it deprives a party of its right to representation by counsel of its choice. S & S Hotel Ventures, 69 N.Y.2d at 443. Rule 3.7 provides “guidance, not binding authority, for courts in determining” whether disqualification is required. Ahrens v. Chisena, 40 A.D.3d 787, 787-88 (2d Dept. 2007). That is because, “[w]hen raised in litigation . . . which in addition to matters of professional conduct directly involves the interests of clients and others—the Code provisions cannot be applied as if they were controlling statutory or decisional law.” S&S Hotel Ventures, 69 N.Y.2d at 443 In evaluating a motion to disqualify counsel, therefore, a court must consider the fact that “in the context of an ongoing lawsuit, disqualification of a plaintiff’s law firm can . . . redound[] to the strategic advantage of one party over another.” Id. (internal citations omitted). The mere fact that an attorney “has relevant knowledge or was involved in an underlying 2 2 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 proceeding dot not make that attorney’s testimony necessary.” Talvy, 205 A.D.2d at 152. Instead, the moving party must establish what facts that the attorney would testify on and why that testimony would be “strictly necessary” to the resolution of the action. S&S Hotel Ventures, 69 N.Y.2d at 445-46. The Institution failed to meet this burden. ARGUMENT POINT I COUNSEL’S INVOLVEMENT IN THE SEQRA PROCESS AND IN THE DRAFTING OF THE SEIS IS NOT GROUNDS FOR DISQUALIFICATION. The Institution’s argument appears to be that counsel must be disqualified simply because of its involvement in the New York State Environmental Quality Review Act (“SEQRA”) process that resulting in the Town of Ellery Town Board’s issuance of the 2018 Supplemental Environmental Impact Statement (“SEIS”) for the application of herbicides to Chautauqua Lake. But mere involvement in an underlying transaction is not a sufficient ground to disqualify an attorney. S & S Hotel Ventures, 69 N.Y.2d at 445-46; Talvy, 205 A.D.2d at 152; In re Will of Bodkin, 128 A.D.3d 1526, 1527 (4th Dept. 2015). And this makes sense. Otherwise, an attorney who drafted a complaint would be subject to disqualification in a pending proceeding on whether the complaint is legally sufficient to survive a motion to dismiss. Or an attorney who advised a client on steps to take in a regulated setting would be automatically disqualified from representing that party if the regulators found that the party’s actions did not compel with those regulations. And an attorney involved in a SEQRA process would be disqualified solely by virtue of his or her involvement in that process. It is worth noting that a search of case law 3 3 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 revealed no cases in which an attorney who assisted in the SEQRA process was subsequently disqualified in an Article 78 action pursuant to Rule 3.7. It is also worth noting that although SEQRA was drafted with the intent that individuals could complete the process, in practice, the process cannot be completed without legal counsel. It would put a heavy onus on and be inequitable to municipalities and project sponsors if their chosen counsel on the SEQRA process were later barred from representing them as a matter of course if that process was challenged. Therefore, unless the Institution can prove –– and it cannot –– that it is likely that counsel will be a necessary witness on a significant issue of fact, the motion must be denied. POINT II THE INSTITUTION FAILED TO POINT TO ANY ISSUE OF FACT ON WHICH COUNSEL’S TESTIMONY WOULD BE REQUIRED. Rule 3.7(a) provides that “a lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” The moving party bears the heavy burden to “to identify the projected testimony of the witness and show that it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his [or her] disqualification.” Bodkin, 128 A.D.3d at 1527 (citing Martinez v. Suozzi, 186 A.D.2d 378, 379 (1st Dept. 1992)). The Institution fails to identify any testimony counsel would need to give on a significant factual issue let alone explain why such testimony would be prejudicial to the Institution. Instead, the Institution makes vague references to “details underlying the preparation of the SEIS and its legal sufficiency.” These vague references do not satisfy the Institution’s heavy moving burden. See Bodkin, 128 A.D.3d at 1527 (citing Vecchiarelli v. 4 4 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 Continental Ins. Co., 216 A.D.2d 909, 910 (4th Dept. 1995); Transcontinental Constr. Servs. v. McDonough, Marcus, Cohn & Tretter, 216 A.D.2d 19, 19 (1st Dept. 1995)). The motion should be denied for this reason alone. At this point, it is difficult to respond to the Institution’s motion without knowing what facts the Institution contends counsel will need to testify on or whether those facts are significant. To the extent that the Institution argues that counsel would need to testify on issues related to the legal sufficiency of the SEIS, such testimony does not implicate Rule 3.7(a). S & S Hotel Ventures, 69 N.Y.2d at 445-46 (holding that Rule 3.7(a) does not require disqualification “[w]hen the issue on which the lawyer will testify raises solely questions of law”); see also Rules of Prof. Con., Rule 3.7. What is more, questions regarding the legal sufficiency of an SEIS do not, in the normal course, raise triable issues of fact on which any witnesses would be called in an Article 78 proceeding. Generally, an Article 78 proceeding is decided on the underlying record. 1 No witnesses are called and no trial takes place. A trial only occurs when “a triable issue of fact is raised.” See CPLR 7804(h). Questions of the legal sufficiency of underlying actions and whether they are supported by record evidence do not raise triable issues of fact. See 475 Ninth Ave. Assocs. LLC v. Bloomberg, 2 Misc. 3d 597, 604 (Sup. Ct. N.Y. Co. Dec. 2, 2003); Howard v. Diamond, 76 Misc. 2d 809, 812 (Sup. Ct. Monroe Co. Jan. 7, 1974). To date, the Institution has failed to raise a triable issue of fact and their moving papers set forth no discrete factual issues on which a trial may be required. Even if a triable issue of fact was raised, any testimony by counsel would at most be cumulative to information that could be gleaned from other witnesses. The draft SEIS and final SEIS were drafted in 1 Of note, the underlying record here was compiled by the Town of Ellery and its counsel –– not by Rupp Baase. 5 5 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 substantial part by Wendel Engineering (a general SEQRA consultant), DK Water Resources (a limnologist), and SOLitude Lake Management (a lake management company). See Cover Pages of Final SEIS (dated April 2018) and Draft SEIS (dated Feb. 2018), attached as Exhibit A to the Affirmation of Anne K. Bowling, Esq., executed on Oct. 23, 2018 (“Bowling Affirmation”). Scientific and technical guidance was provided by biologist Dr. Thomas Erlandson and chemist Dr. Douglas Neckers. CLP Vice President Jim Wehrfritz and regulatory advisors JoDee Johnson and Frank Nicotra oversaw the drafting of the SEIS. Bowling Affirmation at ¶¶ 6-7. If this matter proceeded to a trial, it would be these individuals who would testify regarding issues such as herbicides’ effect on fish spawning and potable water resources – not the lawyers. Id. at ¶ 8. Although counsel reviewed the draft and final SEIS and provided input thereon, the Institution has pointed to no, non-cumulative factual testimony that counsel could offer that would not be addressed by the experts. Id at ¶¶ 8-13, 17-18. If, during the course of any hypothetical trial, questions were raised regarding what occurred at public meetings or the comments raised, there are transcripts of these proceedings and copies of the comments themselves in the record. Bowling Affirmation at ¶ 10. No additional, non-cumulative testimony from counsel would be required. See Douglas v. New York State Adirondack Park Agency, 895 F. Supp. 2d 321, 357-58 (N.D.N.Y. 2012). Therefore, at most, any testimony from legal counsel would be cumulative, would not be prejudicial to the Institution, and would not necessitate disqualification. S & S Hotel Ventures, 69 N.Y.2d at 443; Bodkin, 128 A.D.3d at 1527. In sum, none of the arguments raised by Institution satisfy its heavy burden to prove that counsel should be disqualified and that CLP’s choice for representation should be infringed upon. In the event this Court is inclined to grant the Institution’s motion to disqualify, 6 6 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 such disqualification should only pertain to proceedings on the merits of the Institution’s petition if the Institution raises a triable issue of fact and shows that counsel would be required to offer material, prejudicial non-cumulative testimony regarding underlying factual issues. There is no valid basis for disqualifying counsel from representing CLP on the pending motions to dismiss the Institution’s petition. See Bowling Affirmation at ¶¶ 15-16. Finally, even if this court determines that the undersigned should be disqualified from representing CLP if the Court reaches the merits of the defendants’ motion and if a triable issue of fact is raised on which counsel would be required to offer significant, non-cumulative testimony, the Institution offers no reason why Rupp Baase as a whole should be disqualified. See Talvy, 205 A.D.2d at 152 (holding that disqualification of entire firm was not warranted when moving party only alleged one attorney might be required to testify). POINT IV RUPP BAASE DOES NOT HAVE AN IMPERMISSIBLE FINANCIAL INTEREST IN THE OUTCOME OF THIS PROCEEDING. The Institution also argues that Rupp Baase cannot represent CLP in this matter because it has an impermissible financial interest. See Rule 1.7(a)(2). During oral argument, the Institution appeared to have abandoned this argument, but it is addressed here for the sake of completeness. Rupp Baase does not have any impermissible financial interest in the outcome of this litigation. Rupp Baase was compensated for its work on the SEQRA process and is being compensated for its work on this matter. The mere allegation that Rupp Baase could be open to a malpractice claim if the SEIS is invalidated does not establish an impermissible financial 7 7 of 8 FILED: ERIE COUNTY CLERK 10/23/2018 01:12 PM INDEX NO. 812002/2018 NYSCEF DOC. NO. 72 RECEIVED NYSCEF: 10/23/2018 interest. If it did, no attorney could ever take any action, including the filing of a Petition, that might later be dismissed or otherwise found legally insufficient. Bowling Affirmation at ¶¶ 19-21. The Institution’s arguments for disqualification are a mere legal tactic, not supported by the law or facts, served to infringe upon CLP’s choice of counsel. They should be denied. CONCLUSION The Institution has failed to meet its burden to prove that disqualification of Rupp Baase and/or the undersigned is warranted in this matter. The Institution’s motion for disqualification should be denied. Dated: October 23, 2018 Respectfully submitted, RUPP BAASE PFALZGRAF CUNNINGHAM LLC By: Anne K. Bowling John T. Kolaga 1600 Liberty Building Buffalo, New York 14202 (716) 854-3400 bowling@ruppbaase.com kolaga@ruppbaase.com Attorneys for Chautauqua Lake Partnership, Inc. 8 8 of 8