Opinion
2013-12-24
Samar SHAH, et al., Plaintiffs–Appellants, v. Juan ORTIZ, et al., Defendants–Respondents.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellants. Cohen Law Group, P.C., New York (Brian S. Cohen of counsel), for respondents.
Law Offices of Edward Weissman, New York (Edward Weissman of counsel), for appellants. Cohen Law Group, P.C., New York (Brian S. Cohen of counsel), for respondents.
Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2013, which denied plaintiffs' motion to disqualify Jeffrey P. Shapiro, Esq. from serving as defendants' co-counsel, unanimously affirmed, with costs.
The motion court providently exercised its discretion in denying plaintiffs' motion to disqualify defendants' co-counsel. Plaintiffs failed to meet their burden of showing that they had a prior attorney-client relationship with Mr. Shapiro which is fatal to a motion to disqualify under 22 NYCRR 1200.0 (Rules of Professional Conduct) Rule 1.7(b) ( see Solow v. Grace & Co., 83 N.Y.2d 303, 308, 610 N.Y.S.2d 128, 632 N.E.2d 437 [1994]; Campbell v. McKeon, 75 A.D.3d 479, 905 N.Y.S.2d 589 [1st Dept.2010] ). Contrary to plaintiff's argument, defendants' counsel did not previously represent the plaintiffs in this action, rather, he represented defendant A–Data Technology of Latin America.
We also find that counsel's testimony in this action is unessential and would be cumulative. Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 A.D.3d at 481, 905 N.Y.S.2d 589).
We have considered plaintiffs' remaining contentions and find them unavailing. MAZZARELLI, J.P., SWEENY, MOSKOWITZ, FREEDMAN, CLARK, JJ., concur.