Opinion
2020-03472 Index No. 511872/14
07-12-2023
Mais ALNOUKARI, et al., respondents, v. Daed NOKARI, etc., et al., appellants.
Bachar Mahmoud (The Zweig Law Firm P.C., Brooklyn, NY [Jonah S. Zweig ], of counsel), for appellants. Law Office of Bryan J. Swerling, P.C., New York, NY, for respondents.
Bachar Mahmoud (The Zweig Law Firm P.C., Brooklyn, NY [Jonah S. Zweig ], of counsel), for appellants.
Law Office of Bryan J. Swerling, P.C., New York, NY, for respondents.
COLLEEN D. DUFFY, J.P., FRANCESCA E. CONNOLLY, PAUL WOOTEN, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for assault and battery, the defendants appeal from an order of the Supreme Court, Kings County ( Devin P. Cohen, J.), dated February 5, 2020. The order, insofar as appealed from, granted that branch of the plaintiffs’ motion which was to disqualify Bachar Mahmoud as counsel for the defendants.
ORDERED that the order is affirmed insofar as appealed from, with costs. In December 2014, the plaintiffs commenced this action against the defendants alleging, inter alia, that the defendant Ammar Mahmoud physically abused the plaintiff Mais Alnoukari during their marriage. The plaintiffs alleged, inter alia, that, on a particular occasion, Bachar Mahmoud, who is Ammar Mahmoud's brother, heard Ammar Mahmoud assaulting Alnoukari and intervened. After Bachar Mahmoud entered his appearance as counsel for the defendants, the plaintiffs moved, inter alia, to disqualify him from representing the defendants. In an order dated February 5, 2020, the Supreme Court, inter alia, granted that branch of the plaintiffs’ motion. The defendants appeal.
"The disqualification of an attorney is a matter that rests within the sound discretion of the court" ( Matter of Blauman–Spindler v. Blauman, 184 A.D.3d 636, 637, 123 N.Y.S.3d 831 [internal quotation marks omitted]; see Delaney v. Roman, 175 A.D.3d 648, 649, 106 N.Y.S.3d 150 ). "Rule 3.7(a) of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) provides that, in general, ‘[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact’ " ( Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 A.D.3d 510, 511, 103 N.Y.S.3d 559 ). Here, the plaintiffs alleged that Bachar Mahmoud is a fact witness to the incidents set forth by the plaintiffs. At her deposition, Alnoukari testified that Bachar Mahmoud was the only nonparty witness to the abuse committed by Ammar Mahmoud. As such, Bachar Mahmoud is "likely to be a witness on a significant issue of fact" (see Goldberg & Connolly v. Upgrade Contr. Co., Inc., 135 A.D.3d 703, 704, 24 N.Y.S.3d 124 ; Fuller v. Collins, 114 A.D.3d 827, 830, 982 N.Y.S.2d 484 ). Moreover, under the circumstances, Bachar Mahmoud's disqualification is appropriate to avoid the "appearance of impropriety" (see Courtney v. Edelschick, 157 A.D.2d 818, 821, 550 N.Y.S.2d 415 ; see also S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 444, 515 N.Y.S.2d 735, 508 N.E.2d 647 ).
The defendants’ remaining contentions are either improperly raised for the first time on appeal or without merit.
DUFFY, J.P., CONNOLLY, WOOTEN and TAYLOR, JJ., concur.