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holding that defendants failed to "carry their heavy burden of demonstrating that the attorney would be a necessary witness" because, inter alia, "although the attorney had drafted and negotiated the agreement whose provisions are the basis of the instant dispute, [the defendant] failed to specify any ambiguity that would warrant, or even permit, interpretation by parol"
Summary of this case from Bessemer Tr. Co. v. HartOpinion
2011-10-27
1010DATA INC., Plaintiff–Respondent,v.FIRESTONE ENTERPRISES, INC., et al., Defendants/Counterclaim Plaintiffs–Appellants,v.1010Data Inc., et al., Counterclaim Defendants–Respondents.
Mauro Lilling Naparty LLP, Great Neck (Anthony F. DeStefano of counsel), for appellants.Storch Amini & Munves PC, New York (Steven G. Storch of counsel), for respondents.
Mauro Lilling Naparty LLP, Great Neck (Anthony F. DeStefano of counsel), for appellants.Storch Amini & Munves PC, New York (Steven G. Storch of counsel), for respondents.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered February 15, 2011, which denied defendants/counterclaim plaintiffs' motion to disqualify plaintiff's attorney and his law firm, unanimously affirmed, without costs.
The motion court properly exercised its discretion ( see Harris v. Sculco, 86 A.D.3d 481, 926 N.Y.S.2d 897 [2011] ) in finding that plaintiff's attorney did not have a conflict with either his present or former client and was not a necessary witness.
The attorney's interest as a director and 2% owner of plaintiff did not pose an impediment and, in any event, any resulting conflicts were waived. Nor did the attorney's prior interests or small financial stake obtained in a later transaction constitute improperly acquired interests.
The circumstances do not show that the attorney had formerly represented Evan Firestone in either a 2003 transaction or with respect to a 2005 licensing agreement, since Firestone was on both occasions represented by his own counsel, acknowledged that in the 2003 matter his interests were adverse to the attorney's client's and in the 2005 matter the attorney had expressly told Firestone that he was uncomfortable representing him ( see Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 99, 851 N.Y.S.2d 19 [2008] ).
Nor did defendants carry their heavy burden of demonstrating that the attorney would be a necessary witness ( see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445–446, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ), since his testimony about a modification of Firestone's agreement was based on an announcement at a board meeting where
others were present; his testimony regarding his statement about Firestone's not providing support to customers was not relevant to Firestone's at-will termination for which no relief was sought and was, in any event, already the subject of an e-mail in which the attorney denied making the statement; and, although the attorney had drafted and negotiated the agreement whose provisions are the basis of the instant dispute, Firestone failed to specify any ambiguity that would warrant, or even permit, interpretation by parol.