The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiffs, Peter DeVittorio ("DeVittorio"), Michael Marinelli ("Marinelli"), Ralph Tancredi ("Tancredi") and Edward Arce ("Arce"), bring this action under 42 U.S.C. § 1983 alleging violations of their rights under the First, Fourth and Fourteenth Amendments of the United States Constitution and violations of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2520. Defendants, David Hall ("Hall"), Anthony Marraccini ("Marraccini") and Town/Village of Harrison, New York (the "Town" or "Harrison") moved to disqualify plaintiffs' counsel Lovett & Gould LLP ("L&G") on the grounds that Marraccini was a current client of L&G, and L&G had represented him in prior substantially related matters. The Court denied this motion in an Opinion and Order (the "Order") dated December 12, 2007, and defendants now seek certification of that Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). For the reasons stated below, defendants' motion is denied.
The facts giving rise to this action are set forth in this Court's Order, with which familiarity is presumed. Plaintiffs are police officers for the Town Police Department (the "Department"). Plaintiffs are also members and officers of the Police Benevolent Association ("PBA"). (Complt. ¶¶ 3-6.) Plaintiffs allege that Hall, the Town's Chief of Police, and Marraccini, a Captain in the Department, installed a closed-circuit television camera and audio recorder in the men's locker room at Police Headquarters. (Id. ¶¶ 7-10.) They claim that defendants used the equipment to tape officers in various states of undress, and record and listen to conversations regarding alleged departmental corruption and personal information regarding their objectives as members and officers of the PBA. (Id. ¶ 11.) Plaintiffs Marinelli and Tancredi also claim that defendants retaliated against them for reporting the camera and expressing concerns as PBA members. Plaintiffs claim that Marraccini made false accusations against Tancredi and influenced members of the PBA to run as candidates on his "slate" to take control of the PBA.
Defendants, represented by Bond, Schoeneck & King, PLLC ("BSK"), moved to disqualify plaintiffs' counsel L&G on the grounds that Marraccini was a current client of L&G and that L&G previously represented Marraccini in a number of substantially related matters. (Defs. Mem. Supp. Mot. to Disqualify Pls.' Counsel at 1.) It is uncontested that L&G previously represented Marraccini in the following matters: (1) in January 1992 L&G defended Marraccini when disciplinary charges were brought against him for alleged violations of the Department's rules and regulations, charges which Marraccini believed were brought in retaliation for his support of his brother in an election for Town Mayor/Supervisor; (2) in August 1992, L&G filed a federal civil rights lawsuit under 42 U.S.C. § 1983 on behalf of Marraccini against the Town and members of the Department, alleging that the disciplinary charges and the fact that Marraccini was passed over for promotion were in retaliation for Marraccini's exercise of his First Amendment right to support his brother's campaign; (3) in 1996 L&G wrote to the PBA on behalf of Marraccini when he received what he considered to be a threatening letter from the PBA, stating that legal action would ensue if the PBA took any retaliatory action against Marraccini; (4) in November 1997 L&G filed another federal civil rights lawsuit under 42 U.S.C. § 1983 on behalf of Marraccini, alleging that defendant Sam Fanelli ("Fanelli") and several Town Board members violated Marraccini's First Amendment rights; (5) in November 1998 Fanelli filed a federal civil rights suit against Marraccini, the Department and other officers, and in February 1999 L&G filed a motion to disqualify Friedman & Harfenist as counsel for Marraccini and substitute L&G. Marraccini also claimed to have continued a relationship with L&G and its senior partner, Jonathan Lovett after this, discussing confidential attorney-client matters on numerous occasions.
In our previous Order, we denied defendants' motion to disqualify L&G, finding that there was no current attorney-client relationship between Marraccini and L&G and there was no substantial relationship between the issues in the current action and those in the prior matters. Defendants now ask this Court for certification of that Order for interlocutory appeal pursuant to § 28 U.S.C. 1292(b), contending that there is a controlling legal issue with regard to whether the matters are substantially related and there exists a substantial difference of opinion on that issue.
Section 1292(b) provides that a district court may certify an immediate appeal of an interlocutory order if the court is "of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). "District court judges have broad discretion to deny certification even where the statutory criteria are met." Estevez-Yalcin v. The Children's Vill., 2006 WL 3420833, at *1 (S.D.N.Y. Nov. 27, 2006) (internal quotation marks and citation omitted). The Second Circuit Court of Appeals has consistently instructed district courts to "exercise great care in making a § 1292(b) certification." Westwood Pharm., Inc. v. Nat'l Fuel Gas Distribution Corp., 964 F.2d 85, 89 (2d Cir. 1992); see also Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990) (noting that "the power [to grant an interlocutory appeal] must be strictly limited to the precise conditions stated in the law") (internal quotation marks and citation omitted). Thus "only 'exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'" Klinghoffer, 921 F.2d at 25 (quoting Coopers & Lybrand, 437 U.S. 463, 475 (1978)); see Flaherty v. Filardi, 2007 WL 1827841, at *1 (S.D.N.Y. June 26, 2007) ("Interlocutory appeals under [this section] are an exception to the general policy against piecemeal appellate review embodied in the final judgment rule.") (internal quotation marks and citation omitted).
Therefore, to prevail on this motion, defendants must demonstrate that (i) there is a controlling question of law, (ii) about which there is a substantial difference of opinion, and (iii) an appeal would materially advance the ultimate termination of the lawsuit.
I. Controlling Legal Issues
A controlling legal issue is a question of law, not one of factual dispute where the court applies well-settled legal principles. See Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 631 (2d. Cir. 1991) ("Where, as here, the controlling issues are questions of fact, . . . the federal scheme does not provide for an immediate appeal solely on the ground that such an appeal may advance the proceedings in the district court."); Gilbert v. Seton Hall Univ., 2001 WL 1602167, at *3 (E.D.N.Y. Nov. 27, 2001) (finding no controlling legal issue where the law of assumption of risk was fairly well settled and defendant's arguments for certification for interlocutory appeal depended on decisions which were clearly considered, relied upon, and/or factually distinguished by the judge in making the original determination). A question of law may also be controlling if it substantially affects a large number of cases, see Genentech, Inc. v. Novo Nordisk A/S, 907 F. Supp. 97, 99 (S.D.N.Y. 1995), or if reversal of the district court's order would terminate the action, see Klinghoffer, 921 F.2d at 24.
Defendants state that "the parties dispute the applicability of the facts to the law governing successive representations." (Defs. Mem. Supp. Mot. Seeking Cert. Court's 12/12/07 Order at 4.) Plaintiffs assert that the issues, therefore, are not legal but factual because the law of conflicts of interest is well settled. (Pls. Mem. Opp. Mot. Seeking Cert. Court's 12/12/07 Order at 6-7.) They argue that factual disputes do not provide ground for certification, and defendants are seeking premature appellate review because they feel the Court misapplied the law to the facts. (Id. at 6.)
Defendants have not raised any controlling legal issues, but are merely displeased with this Court's conclusion that plaintiffs' counsel would not be disqualified because there was no substantial relationship between the current litigation and the prior matters in which L&G represented Marraccini. "But a litigant, who is dissatisfied with a court ruling, may not utilize § 1292(b) as a means for securing early resolution of disputes concerning whether the trial court properly applied the law to the facts." Estevez-Yalcin, 2006 WL 3420833, at *3 (internal quotation marks and citation omitted). The determination of substantial similarity in our Order turns on application of the well-settled doctrine of conflicts of interest to the facts of this case; there is no issue as to whether controlling legal authority was correctly stated. See Flaherty, 2007 WL 1827841, at *2 (finding plaintiff's arguments did not present a question as to a controlling issue of law because the case plaintiff cited for support of her position outlined the same standards for analysis as the earlier court opinion and the fact that the ultimate factual determination in that case was different from the outcome reached by the court did not raise a controlling question of law). Consequently, defendants' argument that the law governing conflicts of interest should be applied differently to the facts in this case fails to provide an adequate basis for § 1292(b) certification. See Morris v. Flaig, 511 F. ...