Opinion
06-21-2017
Cari LUCIANO, et al., respondents, v. Douglas KENNEDY, appellant.
Arnold E. DiJoseph, P.C., New York, NY (Arnold E. DiJoseph III of counsel), for appellant. The Taub Law Firm, P.C., New York, NY (Elliot H. Taub and Christian T. Grim of counsel), for respondents.
Arnold E. DiJoseph, P.C., New York, NY (Arnold E. DiJoseph III of counsel), for appellant.
The Taub Law Firm, P.C., New York, NY (Elliot H. Taub and Christian T. Grim of counsel), for respondents.
WILLIAM F. MASTRO, J.P., MARK C. DILLON, SHERI S. ROMAN, and VALERIE BRATHWAITE NELSON, JJ.
In an action, inter alia, to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Giacomo, J.), dated July 31, 2015, which granted the plaintiffs' motion to disqualify nonparty Douglas & London, P.C., from representing the defendant in this action.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the plaintiffs' motion to disqualify nonparty Douglas & London, P.C., from representing the defendant in this action is denied.
"Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants" (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 ). A party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted (see Scialdone v. Stepping Stones Associates, L.P., 148 A.D.3d 950, 49 N.Y.S.3d 543 ; Trimarco v. Data Treasury Corp., 91 A.D.3d 756, 757, 936 N.Y.S.2d 574 ). In order to disqualify counsel on the ground that he or she may be called as a witness, the party moving for disqualification has the burden of demonstrating that counsel's testimony is necessary (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647 ; Falk v. Gallo, 73 A.D.3d 685, 686, 901 N.Y.S.2d 99 ; Biegel v. Gangemi, 54 A.D.3d 887, 889, 864 N.Y.S.2d 530 ; Nationscredit Fin. Servs. Corp. v. Turcios, 41 A.D.3d 802, 839 N.Y.S.2d 523 ).
Here, the plaintiffs failed to demonstrate that the disqualification of nonparty Douglas & London, P.C. (hereinafter the law firm), from representing the defendant in this action was warranted. There was no showing that the testimony of any of the law firm's attorneys was necessary to establish the plaintiffs' case (see Homar v. American Home Mtge. Acceptance, Inc., 119 A.D.3d 901, 901, 990 N.Y.S.2d 250 ; Trimarco v. Data Treasury Corp., 91 A.D.3d at 757, 936 N.Y.S.2d 574 ; see also Orbco Advisors LLC v. 400 Fifth Realty LLC, 134 A.D.3d 448, 448, 19 N.Y.S.3d 745 ; Congregation Talmud Torah Ohev Shalom R. Morris Kevelson v. Sorscher, 69 A.D.3d 898, 899, 894 N.Y.S.2d 476 ). Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiffs' motion.