Commercial Litigation and Arbitration

Disqualification of Former Government Lawyer — Under NY Rule of Prof’l Conduct 1.11(a)(2), “Matter” = Discrete Transaction Or Set of Them & “Substantial Participation” Is Substantive, Affecting the Merits

 Ferncliff Cemetery Ass'n v. Town of Greenburgh, 2019 U.S. Dist. LEXIS 219042 (S.D.N.Y. Dec. 17, 2019):

Before the Court are Defendant Town of Greenburgh's motions to disqualify Plaintiff's counsel Frederick W. Turner, (Doc. 30), and dismiss the Amended Complaint, (Doc. 31). For the following reasons, Defendant's motion to disqualify is DENIED, and Defendant's motion to dismiss is GRANTED.


The Court accepts as true the facts, but not the conclusions, set forth in Plaintiff's First Amended Complaint. (Doc. 28 ("FAC").)

A. Facts

Plaintiff Ferncliff Cemetery Association ("Ferncliff") operates a cemetery located in Hartsdale, Town of Greenburgh, New York. (Id. ¶ 10.) Plaintiff's property consists of 63.5 acres on the north side of Secor Road (the "North Parcel") and approximately 12.5 acres on the south side of Secor Road (the "South Parcel"). (Id. ¶ 19.) Defendant Town of Greenburgh (the "Town") has vested its legislative power [*2]  in the Town Board, comprising four elected Town Council members and the Town Supervisor. (Id. ¶ 11.) The Town's Planning Board, appointed by the Town Board, reviews development plans for the Town. (Id. ¶ 17.) The Town's Zoning Board of Appeals ("ZBA") is authorized to apply the Town's zoning ordinances and hear appeals from decisions rendered by the Town's Building Inspector. (Id. ¶ 12.) The Town's Land Use Committee advises the Town's Boards on zoning and land-use applications. (See id. ¶ 14.) Its members include the Building Inspector and the Town Attorney. (Id.) From 1992 to 2000, Mr. Turner — who now represents Plaintiff — was the Town Attorney. (Doc. 30-1 ¶ 5.)

In 1902, the Westchester County Board of Supervisors granted Plaintiff the authority to use certain land "for cemetery purposes" and the cemetery began operating a year later. (Id. ¶¶ 18-20.) The Parcels changed hands several times, and in 1950, Grove Hill Realty Company acquired title to the South Parcel. (Id. ¶¶ 18-26.) In 1963, the Town amended its Zoning Ordinance to prohibit the expansion of cemeteries in the Town.1 (See Doc. 31 Ex. A ("ZBA Decision") at 2.)2 In 1971, Grove Hill conveyed the South Parcel to Ferncliff. [*3]  (FAC ¶ 27.)

In 1990, Plaintiff filed an application for site plan approval to build a mausoleum on the North Parcel (the "Rosewood Mausoleum"). (Id. ¶¶ 28, 31.) The Town Board denied Plaintiff's application and Plaintiff commenced an Article 78 proceeding. (Id. ¶¶ 34-37.) After the court vacated the Town Board's decision, Defendant issued ordinances that restricted construction of new cemetery buildings. (See, e.g., id. ¶¶ 49-50.) Following two additional lawsuits, the parties settled the matter in 1995 and Plaintiff constructed the Rosewood Mausoleum in 1999, (together, the "Rosewood matter"). (See id. ¶¶ 38-61.)

1. ZBA Decision

In 2001, Plaintiff applied for a building permit for a caretaker cottage on the South Parcel. (Id. ¶¶ 139, 142.) The Town Building Inspector approved the application. (Id. ¶ 142.) In 2013, Plaintiff submitted another building permit application to replace the existing caretaker's cottage with a new cottage that would include a garage for vehicles, equipment, materials, and supplies. (Id. ¶¶ 140-141.) The Town Building Inspector denied the application but suggested that Plaintiff apply for a variance. (Id. ¶ 146; see Doc. 31 Ex. A at 2, 8.) Plaintiff appealed [*4]  the decision to the ZBA. (FAC ¶ 148.) In 2015, the ZBA found that Plaintiff was entitled to a building permit to the extent that the proposed building contained a residence, but affirmed the Building Inspector's decision regarding the garage because it was "much larger" than a residential accessory garage and more appropriately described as "a maintenance facility, storage facility or commercial garage," none of which were permitted under the Zoning Ordinance. (Id. ¶ 168; see ZBA Decision at 8.) The ZBA Decision provided that Plaintiff would require a use variance for such a facility. (FAC ¶ 168.)

Plaintiff did not pursue a variance and instead filed an Article 78 petition in state court. (Id. ¶ 169; see Doc. 31 Ex. B.) The Supreme Court, Westchester County, held that the ZBA had properly considered the matter and denied Ferncliff's petition. (FAC ¶ 169; see Doc. 31 Ex. B at 4-5.)3 Plaintiff's appeal of that decision is currently pending in New York state court. (FAC ¶ 170).

2. The Town's Comprehensive Plan

In 2007, the Town formed a Comprehensive Plan Steering Committee ("CPSC") to develop a new Comprehensive Plan for the unincorporated area of the Town. (Id. ¶ 77.) Two prior Comprehensive plans from [*5]  1970 and 2000 identified Plaintiff's approximately 76 acres of property as cemetery property. (Id. ¶ 78.) In July 2012, the Town's Deputy Commissioner of Community Development and Conservation prepared a map entitled "Future Land Use" that showed Ferncliff's South Parcel classified as "cemetery" land, and emailed it to the Planning Department to include in the draft Comprehensive Plan. (Id. ¶ 81.) In March 2014, the Town released the first draft of the Comprehensive Plan, which showed the South Parcel as cemetery land on an "Existing Land Use Map" but as residential land on a "Future Land Use Map." (Id. ¶ 84.) According to the draft, the property class code was derived "from historic data and ongoing monitoring that reflect[ed] the existing use of each lot." (Id.) A second draft of the Comprehensive Plan released on March 27, 2015, showed the same designations. (Id. ¶ 95.) In August 2015, the third draft of the Comprehensive Plan showed the current and future use of the South Parcel as residential. (Id. ¶ 108.) The fourth and final draft, released December 4, 2015, and adopted by the Town Board on September 28, 2016, also showed the current and future use of the South Parcel as residential. [*6]  (Id. ¶¶ 111, 121.) In October 2016, Plaintiff filed an Article 78 petition in state court seeking, among other things, to annul, void, and vacate the Town's resolution adopting the 2016 Comprehensive Plan. (Id. ¶ 123; see Doc. 31 Ex. C at 1.) Plaintiff also sought an order directing that all land-use maps show all of its 76 acres as cemetery property. (Doc. 31 Ex. C at 1.) The Town filed a motion to dismiss, which the court denied, Plaintiff filed an order to show cause related to a discovery dispute, and the Town filed a motion to stay the proceeding pending resolution of the ZBA Decision appeal, which the court granted. (FAC ¶¶ 123-126.)

3. Tax Assessment Rolls

In 2003, Plaintiff applied for an exemption from real property taxes pertaining to the South Parcel on the ground that it is cemetery property. (Id. ¶¶ 63-65.) After the Town Assessor denied the application, Plaintiff appealed to the Town's Board of Assessment Review ("BAR"). (Id. ¶ 66.) The BAR denied the appeal and Plaintiff commenced another Article 78 proceeding. (Id. ¶¶ 66, 68.) The parties settled the matter in 2005, agreeing that the South Parcel would be "classified as cemetery property exempt from taxation . . . on [*7]  the 2004 assessment roll." (Id. ¶¶ 69-70.) The Town thereafter treated the South Parcel as tax-exempt, but did not change its classification until September 15, 2016, when the Town's Final Assessment Roll classified it as cemetery property. (Id. ¶¶ 118, 132.) According to Plaintiff, the Town's failure to change the classification supported (1) opposition to Plaintiff's caretaker cottage application and (2) the CPSC's designation of the South Parcel as residential property on the Current and Future Land Use Maps in the Comprehensive Plan. (Id. ¶ 132.)

On June 1, 2017, the Town Assessor changed the South Parcel's classification on the 2017 Tentative Assessment Roll from cemetery to residential. (Id. ¶ 134.) Plaintiff thereafter appealed to the BAR to restore the cemetery designation, and the BAR denied that appeal on September 15, 2017. (Id. ¶¶ 135-136.) Plaintiff then filed an Article 78 petition in state court seeking to annul, void, and vacate the BAR decision. (Id. ¶ 137.) The court stayed the matter pending resolution of the ZBA Decision appeal. (Id.) Plaintiff moved to vacate the stay, and the court denied that motion on October 30, 2018. (Id.) On September 17, 2018, the BAR denied [*8]  Plaintiff's appeal challenging the classification of the South Parcel as residential on the 2018 Final Assessment Roll, and a subsequent proceeding has also been stayed. (Id. ¶ 138.)

B. Procedural History

Plaintiff commenced this action on July 16, 2018. (Doc. 1.) On January 2, 2019, Defendant filed a pre-motion letter in anticipation of its motion to dismiss, (Doc. 12), and the Court scheduled a pre-motion conference for January 25, 2019, (Doc. 13). At the conference, at which Defendant indicated it also intended to move to disqualify Mr. Turner, the Court granted Plaintiff leave to amend its complaint, (Minute Entry dated Jan. 25, 2019), which it did on May 30, 2019, (AC). On June 25, 2019, Defendant filed a motion to disqualify, (Doc. 30), along with its memorandum of law, (Doc. 30-2 ("D's Mem.")), and its affirmation of counsel, (Doc. 30-1). Plaintiff filed an opposition memorandum, (Doc. 35 ("P's Opp.")), and affirmation of counsel, (Doc. 34 ("Turner Affirm")). Defendant filed a reply affirmation. (Doc. 38.)

On June 25, Defendant also filed its motion to dismiss, (Doc. 31), along with its memorandum of law, (Doc. 31-7 ("Ds' MTD Mem.")), an affirmation of counsel, (Doc. 31-1), and [*9]  various exhibits, (Doc. 31 Exs. A-E). Plaintiff filed an opposition memorandum, (Doc. 37 ("P's MTD Opp.")), an affirmation of counsel, (Doc. 36), and accompanying exhibits, (id. Exs. 1-6). Defendant filed a reply memorandum, (Doc. 39), and affirmation of counsel, (Doc. 40), with exhibits, (id. Exs. F-H).

Plaintiff's FAC raises the following claims against the Town under 42 U.S.C. § 1983: (1) the Town's reclassification of the South Parcel from cemetery to residential in the 2016 Comprehensive Plan and the 2017 assessment roll violated Plaintiff's right to substantive due process under the Fifth Amendment, (FAC ¶¶ 174-189); (2) the ZBA Decision effected a regulatory taking without just compensation in violation of the Fifth Amendment, (id. ¶¶ 190-198); (3) § 285-36B of the Town Code, which precludes increase in the land area of cemeteries, constitutes a taking under the Fifth Amendment and the New York State Constitution both facially and as applied to Plaintiff's caretaker's cottage application, (id. ¶¶ 199-211); and (4) the South Parcel's designation as residential property in the Comprehensive Plan violates the Fourteenth Amendment Equal Protection Clause, (id. ¶¶ 212-218).4

A. Motion to Disqualify

Plaintiff's counsel Frederick W. Turner served as the Greenburgh Town Attorney [*10]  between 1992 and 2000, during which time the parties were engaged in litigation. (Turner Affirm ¶¶ 4-5.) Defendant moves to disqualify Mr. Turner on the ground that, during his tenure, he "was privy to confidential information and discussions related to the events mentioned in Plaintiff's Amended Complaint" - specifically, the Rosewood matter. (D's Mem. at 3.)

"The authority of federal courts to disqualify attorneys derives from their inherent power to preserve the integrity of the adversary process," United States v. Prevezon Holdings Ltd., 839 F.3d 227, 241 (2d Cir. 2016) (internal quotation marks omitted), and the decision to disqualify is "a matter committed to the sound discretion of the district court," Purgess v. Sharrock, 33 F.3d 134, 144 (2d Cir. 1994). "Because courts must guard against the tactical use of motions to disqualify counsel, they are subject to fairly strict scrutiny . . . ." Murray v. Metro. Life Ins. Co., 583 F.3d 173, 178 (2d Cir. 2009) (internal quotation marks omitted). "Accordingly, such motions are viewed with disfavor and, while any doubts are to be resolved in favor of disqualification, the party seeking disqualification bears a heavy burden of demonstrating that disqualification is necessary." Goodwine v. City of N.Y., No. 15-CV-2868, 2016 WL 379761, at *2 (S.D.N.Y. Jan. 29, 2016) (internal quotation marks omitted).

Rule 1.11 of the New York Rules of Professional Conduct provides in relevant part that "a lawyer who has formerly served [*11]  as a public officer or employee of the government . . . shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee." N.Y.R. Prof'l Conduct 1.11(a)(2). "[T]he 'matter' must have been the same matter," and assessing the scope of a matter "is an intensely fact-specific inquiry." Green v. City of N.Y., No. 10-CV-8214, 2011 WL 2419864, at *2 (S.D.N.Y. June 7, 2011). Under New York Code of Professional Responsibility Disciplinary Rule 9-101(B), a predecessor to Rule 1.11,5 a "matter" was defined as "a discrete and isolatable transaction or set of transactions between identifiable parties." McBean v. City of N.Y., No. 02-CV-5426, 2003 WL 21277115, at *2 (S.D.N.Y. June 3, 2003) (internal quotation marks omitted); see Goodwine, 2016 WL 379761, at *2-3 (adopting McBean's definition in Rule 1.11(a) analysis). "For purposes of Rule 1.11(a)(2), substantial participation is substantive in nature and directly affects the merits of the prior case." Arroyo v. City of Buffalo, 15-CV-753, 2017 WL 3085835, at *12 (W.D.N.Y. July 20, 2017) (internal quotation marks and alterations omitted), report & recommendation adopted, 2018 WL 488943 (W.D.N.Y. Jan. 20, 2018).

According to Defendant, when Mr. Turner served as Town Attorney he served as counsel to the Town Board and attended "most, if not all" Board meetings, including executive sessions and work sessions, from 1992 through January 2000. (Doc. 30-1 ¶ 5.) Defendant argues that Mr. Turner should be disqualified because his position [*12]  made him "privy to confidential information and discussions related to the events mentioned in Plaintiff's Amended Complaint." (D's Mem. at 3.) Plaintiff contends that "Defendant has totally failed to carry its burden of (i) establishing any substantive connection between this matter and the Rosewood matter, or (ii) mak[ing] any showing that Turner participated in the Rosewood matter personally and substantially." (P's Opp. at 6-7 (internal quotation marks omitted).)6

On the first point, I agree. Defendant's conclusory memorandum of law in support of its motion contains, at most, two sentences of argument, and they do not suffice to meet the "heavy burden of demonstrating that disqualification is necessary." Goodwine, 2016 WL 379761, at *2 (internal quotation marks omitted). Assuming for the sake of argument that Defendant has shown that Mr. Turner participated "personally and substantially" in the Rosewood matter,7 Defendant has not shown that the Rosewood litigation is the same "matter" as the instant case. The Rosewood litigation involved development of the North Parcel (specifically, the height of a proposed mausoleum), while the FAC challenges Defendant's development of the South Parcel (specifically, a caretaker's cottage and [*13]  garage), as well as the 2016 adoption of the Comprehensive Plan and the tax authority's 2017 and 2018 determinations as they relate to the South Parcel. (See FAC ¶¶ 180-228.) Plaintiff has also explicitly stated that facts regarding the Rosewood litigation "are provided for historical perspective and informational purposes only" and that it is not seeking any relief related thereto. (Id. ¶ 28). Although the Rosewood litigation and the instant dispute involve the same parties, the legal theories and facts are not the same. Compare Goodwine, 2016 WL 379761, at *3 (finding matters are the same where plaintiff, defendant, and legal theory are the same), with McBean, 2003 WL 21277115, at *3 (finding matters distinct where they have different parties, facts, and legal issues). In sum, Defendant has not shown that the Rosewood litigation and this case constitute the same "discrete and isolatable . . . set of transactions," McBean, 2003 WL 21277115, at *2, and therefore they are not the same matter. Thus, Mr. Turner's participation in the Rosewood matter would not, absent unusual circumstances, require his disqualification in the instant case.

Defendant points out, however, that because the FAC includes a lengthy description of the litigation over the Rosewood Mausoleum, (FAC ¶¶ [*14]  28-62), and because Plaintiff argues — in connection with its argument that seeking a variance for the cottage/garage building would be futile — that "[r]eference must be made to Ferncliff's attempts to construct the Rosewood Mausoleum from 1989-1996," (P's MTD Opp. at 10), Plaintiff has made this litigation and the Rosewood litigation into the same matter, (Doc. 38 ¶¶ 11-12). It does indeed appear that Plaintiff is trying to eat its cake and have it too, by arguing that the two matters are distinct, in order to keep Mr. Turner as its counsel, and that they are interrelated, in order to bolster its argument on futility. Were the latter a persuasive argument, I would reach the issue of substantial participation and perhaps disqualify Mr. Turner, because the matters would be interrelated (or perhaps I would give Plaintiff the option of dropping the Rosewood allegations from its case). But as discussed below, I do not find the historical reference to the Rosewood matter to be sufficient to plausibly show futility.

Accordingly, Defendant's motion to disqualify Mr. Tucker is denied.


The ordinance provides: "Cemeteries and crematories in existence on January 1, 1963 are permitted, provided that the land area of the cemetery shall not be increased." Town of Greenburgh Code § 285-36B.

"The district court can refer to evidence outside the pleadings when resolving a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1)." Broidy Capital Mgmt. LLC v. Benomar, No. 19-236, 2019 WL 6646623, at *2 (2d Cir. Dec. 6, 2019) (alteration and internal quotation marks omitted); Liberty Cable Co. v. City of N.Y., 893 F. Supp. 191, 199 n.11 (S.D.N.Y.) (collecting cases), aff'd, 60 F.3d 961 (2d Cir. 1995). Both parties have submitted sworn declarations and affidavits, attaching several documents thereto, and neither party disputed the authenticity of any of these attachments nor asserted that there were any that the Court should not consider. I accordingly consider these documents in my analysis.

Citations to Doc. 31 Ex. B use the page numbers generated by the Court's ECF system.

The FAC contains numbering errors. The paragraphs are numbered 1 through 223, (see FAC at 1-55), followed by paragraphs 214 through 218 instead of 224 through 228, (see id. at 55-56.) I refer to paragraphs 214 through 218 on pages 55 and 56 as paragraphs 224 through 228, as though they were consecutively numbered.

Rule 1.11 the New York Rules of Professional Conduct is "similar in substance to its predecessor, Disciplinary Rule 9-101(B), which prohibited a lawyer from 'accept[ing] employment in a matter in which he had substantial responsibility while he was a public employee.'" Goodwine, 2016 WL 379761, at *2 n.2 (quoting N.Y.R. Prof'l Resp. DR 9-101(B)) (alteration in original).

Plaintiff argues that American Bar Association Model Rule of Professional Conduct 1.11, not New York Rule of Professional Conduct 1.11, should govern. (P's Opp. at 6.) In this Circuit, "decisions on disqualification motions often benefit from guidance offered by the American Bar Association (ABA) and state disciplinary rules." Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005). Reliance on the New York Rules and on the ABA Model Rules, on which the New York Rules were modeled, is proper. Fischman v. Mitsubishi Chem. Holdings Am., Inc., No. 18-CV-8188, 2019 WL 3034866, at *5 n.4 (S.D.N.Y. July 11, 2019). I analyze Plaintiff's obligation under the New York rule, but the outcome is the same under either rule.

In support of its position that Mr. Turner participated "personally and substantially" in the previous matter, Defendant on reply offers four documents: (1) a sur-reply affirmation from 1994 in the Rosewood litigation authored by a Deputy Town Attorney who worked for Mr. Turner, (Doc. 38-2 at 1-4); (2) a draft memorandum of law in the Rosewood litigation written by the Deputy Town Attorney purportedly showing edits by Mr. Turner relating to the structure of the argument, (id. at 5-6; see Doc. 38 ¶ 13); (3) a January 12, 1995 memorandum from Mr. Turner as Town Attorney to Mr. Lieberman as Deputy Town Attorney including instructions to keep him apprised, provide draft pleadings for his review, and work with the insurance company to see if it would defend the Ferncliff cases, (Doc. 38-3 at 1); and (4) a 1995 letter to Mr. Turner as Town Attorney inquiring about public statements he made about the mausoleum-height zoning change, (Doc. 38-4). According to Defendant, these documents belie the representation Mr. Turner made at the conference held on January 25, 2019, that outside counsel handled the Rosewood matter. These documents do not show whether outside counsel took over the litigation or not, but they show some involvement by Mr. Tucker. I need not decide whether that involvement was substantial.

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