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John Corbelli, as Co-executors of Emilia Corbelli v. General Accident Insurance Company of America, and Third-Party Plaintiff-Respondent. Smith & Reddy, Formerly Known as Bayer & Smith, Third-Party
—Order unanimously affirmed with costs. Memorandum: The motion of third-party defendant, Smith & Reddy, to disqualify defendant-third-party plaintiff’s counsel, the law firm of Saperston & Day, P. C., was properly denied.
Code of Professional Responsibility DR 5-108 (A) (1) (22 NYCRR 1200.27 [a] [1]) provides that, except with consent and after full disclosure, a lawyer "who has represented the former client in a matter shall 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.” "The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client” (Rowley v Waterfront Airways, 113 AD2d 926, 927 ; see also, Matter of Reichenbaum v Reichenbaum & Silber stein, 162 AD2d 599, 600 , lv dismissed 77 NY2d 873 ).
Third-party defendant has not established the existence of an attorney-client relationship between it and Saperston & Day. There was no prior relationship between those two law firms and no communication indicating that Saperston & Day was acting as anything but the representative of defendant third-party plaintiff (see, Saftler v Government Empls. Ins. Co., 95 AD2d 54, 58 ).
(Appeal from Order of Supreme Court, Monroe County, Cornelius, J. — Disqualification of Law Firm.) Present —Denman, P. J., Green, Balio, Fallon and Boehm, JJ.