124 A.D.3d 1266
Supreme Court, Appellate Division, Fourth Department, New York.
In the Matter of the ESTATE OF David C. PETERS, Deceased.
Jan. 2, 2015.
Law Offices of John P. Bartolomei & Associates, Niagara Falls (John P. Bartolomei
of Counsel), for Petitioner-Respondent.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ.
Respondent appeals from an order denying her motion seeking, inter alia, to
disqualify petitioner's attorney and his law firm from representing petitioner.
We conclude that Surrogate's Court properly denied that motion.
 In support of her motion, respondent contended that petitioner's attorney
had once represented her and her son, David C. Peters (decedent), in an action
related to ownership of one of the pieces of real property at issue in this
proceeding. That real property is situated within the borders of the Tonawanda
Seneca Nation Territory (Territory), and was purportedly owned by decedent when he
died. Through his will, which was offered for probate in September 2011,
decedent sought to devise and bequeath that same piece of real property, as well
as businesses situated thereon, to his brother and petitioner, who is decedent's
daughter. Respondent is decedent's mother, and she challenged various provisions
of decedent's will, contending that she had a superior right of ownership over all
of the real property situated on the Territory based on "matriarchal tribal law."
Since decedent's death, there has been ongoing litigation related to decedent's
estate and the Surrogate's authority to preside over that litigation (see e.g.
Peters v. Noonan, 871 F.Supp.2d 218; Matter of Tonawanda Seneca Nation v. Noonan,
122 A.D.3d 1334, 996 N.Y.S.2d 446), and we take judicial notice of the records
submitted to this Court in related appeals (see Edgewater Constr. Co., Inc. v. 81
& 3 of Watertown, Inc. [Appeal No. 2], 24 A.D3.d 1229, 1231, 806 N.Y.S.2d 817).
In the midst of that litigation, respondent filed the instant motion to disqualify
 "The Code of Professional Responsibility does not in all circumstances bar
attorneys from representing parties in litigation against former clients.
Rather, DR 5-108 sets out two prohibitions on attorney conduct relating to former
clients. First, an attorney may not 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' ... Second, an attorney may not use
'any confidences or secrets of the former client except as permitted by DR
4-101(C) or when the confidence or secret has become generally known' " (Jamaica
Pub. Serv. Co. v. AIU Ins. Co., 92 N.Y.2d 631, 636, 684 N.Y.S.2d 459, 707 N.E.2d
414). "A party seeking disqualification of its adversary's lawyer pursuant to DR
5-108(A)(1) must prove that there was an attorney-client relationship between the
moving party and opposing counsel, that the matters involved in both
representations are substantially related, and that the interests of the present
client and former client are materially adverse. Only 'where the movant
satisfies all three inquiries does the irrebuttable presumption of
disqualification arise' " (id.).
*607  Of particular concern to the courts, however, is the fact that
"motions to disqualify are frequently used as an offensive tactic, inflicting
hardship on the current client and delay upon the courts by forcing
disqualification even though the client's attorney is ignorant of any confidences
of the prior client. Such motions result in a loss of time and money, even if
they are eventually denied. [The Court of Appeals] and others have expressed
concern that such disqualification motions may be used frivolously as a litigation
tactic when there is no real concern that a confidence has been abused" (Solow v.
Grace & Co., 83 N.Y.2d 303, 310, 610 N.Y.S.2d 128, 632 N.E.2d 437). Inasmuch as
the right to counsel of choice, while not absolute, "is a valued right[,] ... any
restrictions [thereon] must be carefully scrutinized" (S & S Hotel Ventures Ltd.
Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d
647). We must therefore balance "the vital interest in avoiding even the
appearance of impropriety [with] a party's right to representation by counsel of
choice and [the] danger that such motions can become tactical 'derailment' weapons
for strategic advantage in litigation" (Jamaica Pub. Serv. Co., 92 N.Y.2d at 638,
684 N.Y.S.2d 459, 707 N.E.2d 414).
Contrary to petitioner's contention, respondent established that she had a
prior attorney-client relationship with petitioner's attorney, that the issues in
the two litigations are substantially related, each involving ownership of the
same parcel of property, and that her interests are adverse to those of petitioner
(see id. at 636, 684 N.Y.S.2d 459, 707 N.E.2d 414; Tekni-Plex, Inc. v. Meyner &
Landis, 89 N.Y.2d 123, 132, 651 N.Y.S.2d 954, 674 N.E.2d 663, rearg. denied 89
N.Y.2d 917, 653 N.Y.S.2d 921, 676 N.E.2d 503; Solow, 83 N.Y.2d at 313, 610
N.Y.S.2d 128, 632 N.E.2d 437). Usually, that would create an "irrebuttable
presumption of disqualification" (Tekni-Plex, 89 N.Y.2d at 132, 651 N.Y.S.2d 954,
674 N.E.2d 663; see Jamaica Pub. Serv. Co., 92 N.Y.2d at 636, 684 N.Y.S.2d 459,
707 N.E.2d 414), but many courts have nevertheless denied disqualification upon
finding that a party has waived any objection to the purported conflict of
interest (see e.g. Hele Asset, LLC v. S.E.E. Realty Assoc., 106 A.D.3d 692,
693-694, 964 N.Y.S.2d 570; Gustafson v. Dippert, 68 A.D.3d 1678, 1679, 891
N.Y.S.2d 842; Lake v. Kaleida Health, 60 A.D.3d 1469, 1470, 876 N.Y.S.2d 800).
 In determining whether a party has waived any objection to a conflict
of interest, "courts consider when the challenged interests became materially
adverse to determine if the party could have moved [for disqualification] at an
earlier time ... If a party moving for disqualification was aware or should have
been aware of the facts underlying an alleged conflict of interest for an extended
period of time before bringing the motion, that party may be found to have waived
any objection to the other party's representation ... Further, where a motion to
disqualify is made in the midst of litigation where the moving party knew of the
alleged conflict of interest well before making the motion, it can be inferred
that the motion was made merely to secure a tactical advantage" (Hele Asset, LLC,
106 A.D.3d at 694, 964 N.Y.S.2d 570; see Gustafson, 68 A.D.3d at 1679, 891
N.Y.S.2d 842; Lake, 60 A.D.3d at 1470, 876 N.Y.S.2d 800).
 Under the circumstances of this case, we conclude that respondent waived
her objection to the attorney's representation of petitioner. Respondent "was
aware ... of the facts underlying [the] alleged conflict of interest for an
extended period of time before bringing the motion" (Hele Asset, LLC, 106 A.D.3d
at 694, 964 N.Y.S.2d 570). Decedent passed away in August 2011, and the will was
offered for *608 probate in September 2011. The executors appointed by the will
refused to transfer to petitioner any of the real or personal property located
within the Territory that was devised and bequeathed to her because respondent was
asserting a superior right to all of the real property located within the
Territory as well as the businesses situated thereon under the claimed authority
of tribal law. In December 2011, petitioner sought, inter alia, a hearing to
determine whether respondent had lost any bequests pursuant to the in terrorem
clause of decedent's will.
Respondent "made a 'special appearance' " in the probate proceeding on January
17, 2012 to assert her claims that the real property and businesses located within
the Territory were not decedent's property to distribute. She claimed title and
ownership of the property and the business interests "pursuant to matriarchal
tribal law and clan interests." The Surrogate noted, however, that despite her
assertions, respondent was refusing to submit to the jurisdiction of Surrogate's
On January 30, 2012, respondent's attorney again appeared in court, at which
time he was advised that respondent needed to file an intervenor pleading and pay
a filing fee. Respondent refused to do so and, in March 2012, the Surrogate
warned that the continued failure to do so would result in the Surrogate finding
her in default on her attempted intervention. "Rather than intervene, on March
22, 2012, [respondent] filed a Federal lawsuit against [the Surrogate]." In the
context of that federal action, respondent moved for a temporary restraining order
prohibiting the Surrogate from probating decedent's will. That motion was denied
on May 18, 2012 (see Peters, 871 F.Supp.2d at 220).
In August 2012, the Surrogate removed the coexecutors based on their refusal to
comply with orders issued by the Surrogate, and he appointed petitioner as
administratrix C.T.A. In December 2012, petitioner filed a petition seeking
disgorgement and forfeiture of any and all bequests, devised properties and gifts
under the will received by respondent. One month later, in January 2013,
respondent filed the instant motion to disqualify petitioner's attorney and his
law firm from representing petitioner.
Petitioner's attorney has represented petitioner in this matter since November
2011. At all times, petitioner's interests have been materially adverse to
respondent's interests inasmuch as respondent has consistently maintained that,
pursuant to matriarchal tribal law, she is entitled to all of the real property
and businesses located within the Territory that were to pass to petitioner under
the will. Although respondent was technically not a named "party" in any
proceeding, she and her attorney actively participated in the litigation for over
one year with full knowledge of the identity of petitioner's attorney and the
potential conflict of interest involving that attorney. Given the complexity of
the litigation, the hardship that would be inflicted on petitioner and the estate,
and the one-year delay in bringing the motion, we conclude that this motion was
made "as an offensive tactic" (Solow, 83 N.Y.2d at 310, 610 N.Y.S.2d 128, 632
N.E.2d 437), i.e., for the purpose of "secur[ing] a tactical advantage" in the
proceeding (Hele Asset, LLC, 106 A.D.3d at 694, 964 N.Y.S.2d 570), and that "there
is no real concern that a confidence has been abused" (Solow, 83 N.Y.2d at 310,
610 N.Y.S.2d 128, 632 N.E.2d 437).
It is hereby ORDERED that the order so appealed from is unanimously affirmed