Opinion
2012-01-17
BLANCHE, VERTE & BLANCHE, LTD., plaintiff-respondent, v. JOSEPH MAURO & SONS, appellant,Shore Drug, Inc., defendant-respondent.
Guararra & Zaitz LLP, New York, N.Y. (Michael J. Guararra of counsel), for appellant. Neil H. Greenberg & Associates, P.C., Westbury, N.Y. (Justin M. Reilly of counsel), for plaintiff-respondent.
Guararra & Zaitz LLP, New York, N.Y. (Michael J. Guararra of counsel), for appellant. Neil H. Greenberg & Associates, P.C., Westbury, N.Y. (Justin M. Reilly of counsel), for plaintiff-respondent.
In an action to recover damages for negligence and breach of contract, the defendant Joseph Mauro & Sons appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated September 1, 2010, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it and, in effect, in the alternative, to disqualify the plaintiff's attorney.
ORDERED that the order is affirmed, with costs to the plaintiff-respondent.
The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against it as violative of the rule against successive motions for summary judgment ( see Sutter v. Wakefern Food Corp., 69 A.D.3d 844, 845, 892 N.Y.S.2d 764; Kimber Mfg., Inc. v. Hanzus, 56 A.D.3d 615, 616, 868 N.Y.S.2d 94; Crane v. JAB Realty, LLC, 48 A.D.3d 504, 853 N.Y.S.2d 99; Williams v. City of White Plains, 6 A.D.3d 609, 775 N.Y.S.2d 868).
The Supreme Court also properly denied that branch of the appellant's motion which was, in effect, to disqualify the plaintiff's attorney on the ground that he was likely to be called as a witness on a significant issue of fact ( see 22 NYCRR 1200.7, rule 3.7). Since the appellant “failed to offer any proof as to the content or subject matter of the testimony that might be elicited from the [plaintiff's] attorney,” nor is it “apparent from the record as to why it is necessary to call him as a witness,” the appellant “failed to demonstrate that the testimony of the [plaintiff's] attorney was necessary” ( Bentvena v. Edelman, 47 A.D.3d 651, 651–652, 849 N.Y.S.2d 626; see Hudson Val. Mar., Inc. v. Town of Cortlandt, 54 A.D.3d 999, 1000, 865 N.Y.S.2d 122; Broadwhite Assoc. v. Truong, 237 A.D.2d 162, 654 N.Y.S.2d 144; cf. Brunette v. Gianfelice, 171 A.D.2d 719, 567 N.Y.S.2d 279; Gasoline Expwy v. Sun Oil Co. of Pa., 64 A.D.2d 647, 647–648, 407 N.Y.S.2d 64, affd. 47 N.Y.2d 847, 418 N.Y.S.2d 585, 392 N.E.2d 572).