Opinion
2017–12821 Index No. 6701/16
12-16-2020
EMPIRE MEDICAL SERVICES OF LONG ISLAND, P.C., et al., plaintiffs, Anthony Colantonio, appellant, v. Anupam SHARMA, et al., respondents, et al., defendants.
Anthony Colantonio, Garden City, NY, appellant pro se.
Anthony Colantonio, Garden City, NY, appellant pro se.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for fraud, the plaintiff Anthony Colantonio appeals from an order of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered September 12, 2017. The order granted the separate motions of the defendants Darrell Conway and Anupam Sharma to disqualify the plaintiff Anthony Colantonio as counsel for the plaintiffs Empire Medical Services, P.C., and Robert Cestari in this action.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with one bill of costs, and the separate motions of the defendants Darrell Conway and Anupam Sharma to disqualify the plaintiff Anthony Colantonio as counsel for the plaintiffs Empire Medical Services, P.C., and Robert Cestari in this action are denied.
In September 2016, the plaintiffs, Anthony Colantonio, Empire Medical Services of Long Island, P.C. (hereinafter Empire Medical), and Robert Cestari, commenced this action, inter alia, to recover damages for fraud and breach of contract arising out of the purchase/lease of a liposuction laser unit (hereinafter the laser unit). Colantonio, who is a physician and an attorney, is representing himself as well as Empire Medical and Cestari in this action.
The defendant Darrell Conway, who was counsel for Colantonio and Empire Medical in a prior action wherein Colantonio and Empire Medical were found liable for the amount of the remaining payments on the laser unit at issue (see Ascentium Capital, LLC v. Empire Med. Servs. of Long Is., P.C., 182 A.D.3d 563, 120 N.Y.S.3d 824 ), moved in this action to disqualify Colantonio as counsel for Empire Medical and Cestari. The defendant Anupam Sharma (hereinafter together with Conway, the defendants), who the plaintiffs allege was involved in the fraudulent purchase/lease of the laser unit, separately moved for similar relief. In an order entered September 12, 2017, the Supreme Court granted the motions. Colantonio appeals.
The Supreme Court should have denied the motions to disqualify Colantonio as counsel for Empire Medical and Cestari. " ‘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’ " ( Homar v. American Home Mtge. Acceptance, Inc., 119 A.D.3d 901, 901, 990 N.Y.S.2d 250, quoting Trimarco v. Data Treasury Corp., 91 A.D.3d 756, 756–757, 936 N.Y.S.2d 574 ). Although the right to counsel of one's choosing is not absolute, disqualification of legal counsel during litigation implicates both the ethics of the profession as well as the parties' substantive rights, requiring any restrictions to be carefully scrutinized (see 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 ; Gulino v. Gulino, 35 A.D.3d 812, 812, 826 N.Y.S.2d 903 ). "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 ‘(1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party’ " ( Homar v. American Home Mtge. Acceptance, Inc., 119 A.D.3d at 901, 990 N.Y.S.2d 250, quoting Trimarco v. Data Treasury Corp., 91 A.D.3d at 757, 936 N.Y.S.2d 574 ; see Lombardi v. Lombardi, 164 A.D.3d 665, 667, 83 N.Y.S.3d 232 ). In turn, "[a] finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" ( 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 ).
Here, the defendants each failed to make the requisite showing that Colantonio should be disqualified as counsel for Empire Medical and Cestari. The defendants failed to specify the facts about which they expect Colantonio to testify or to establish how such testimony would be necessary to their defense (see Lombardi v. Lombardi, 164 A.D.3d at 667, 83 N.Y.S.3d 232 ; Trimarco v. Data Treasury Corp., 91 A.D.3d at 757, 936 N.Y.S.2d 574 ). They also failed to allege that Colantonio's testimony would be prejudicial to Cestari or Empire Medical (see Trimarco v. Data Treasury Corp., 91 A.D.3d at 757, 936 N.Y.S.2d 574 ). Indeed, Colantonio and Cestari both attested to the opposite. At this early stage in the litigation, discovery has not established the substance and necessity of Colantonio's testimony in the action (see Harris v. Sculco, 86 A.D.3d 481, 481, 926 N.Y.S.2d 897 ). Moreover, in opposition to the motions, Cestari averred that disqualification of Colantonio would cause a substantial hardship on him, which constitutes an exception to the rule 3.7 of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) advocate-witness disqualification (see 22 NYCRR 1200.0 ; Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 A.D.3d 510, 511, 103 N.Y.S.3d 559 ; see also People v. Townsley, 20 N.Y.3d 294, 299, 959 N.Y.S.2d 94, 982 N.E.2d 1227 ).
Accordingly, the motions to disqualify Colantonio as counsel for Cestari and Empire Medical in this action should have been denied.
RIVERA, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.