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Perry-Bottinger v. Bottinger

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 29, 2009

LYNNE PERRY-BOTTINGER, PLAINTIFF-APPELLANT,
v.
ERWIN BOTTINGER, DEFENDANT-RESPONDENT.
FREDERIC P. SCHNEIDER, NON-PARTY RESPONDENT.

Order, Supreme Court, New York County (Harold Beeler, J.), entered October 15, 2008, which denied plaintiff's motion to disqualify the attorney for the children, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Catterson, Moskowitz, Richter, Manzanet-Daniels, JJ.

310354/07

The record supports the claim of the attorney for the children that the professional opinion he formed as to the impairment of the children, which reflected his unfavorable judgment of plaintiff's character and influence, was a result of his interactions with the parties during the course of his representation and his consideration of the conclusions in the forensic report and proof of plaintiff's conduct. His advocacy of the children's best interests based on that opinion was a proper exercise of his authority and does not form a basis for his disqualification (see Matter of Carballeira v Shumway, 273 AD2d 753 [2000], lv denied 95 NY2d 764 [2000]). We reject plaintiff's contention that the attorney was impermissibly biased against her.

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091229

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