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Goldberger v. Eisner

Appellate Division of the Supreme Court of New York, Second Department
Aug 8, 2005
21 A.D.3d 401 (N.Y. App. Div. 2005)

Summary

reversing disqualification of attorney because movant failed to establish "that the testimony of the opposing counsel is necessary to their case, and that such testimony is or may be prejudicial to the client"

Summary of this case from Chidekel v. Cabrini Medical Ctr.

Opinion

2004-06530.

August 8, 2005.

In an action, inter alia, to enjoin the defendants from enforcing a judgment, the plaintiffs appeal from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated June 24, 2004, as granted the defendants' motion to disqualify the plaintiffs' counsel.

Before: H. Miller, J.P., Ritter, Goldstein and Skelos, JJ., concur.


Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is denied.

The Supreme Court improvidently exercised its discretion in granting the defendants' motion to disqualify the plaintiffs' counsel pursuant to Code of Professional Responsibility DR 5-102 (d) ( 22 NYCRR 1200.21 [d]). To obtain disqualification of counsel pursuant to that provision, the party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to their case, and (2) that such testimony is or may be prejudicial to the client ( see S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437, 446; Daniel Gale Assoc., Inc. v. George, 8 AD3d 608, 609).

In the instant case, the defendants failed to demonstrate either that the testimony of the plaintiffs' counsel was necessary or that it would prejudice the plaintiffs' case. The defendants submitted only speculation in support of their motion, which was insufficient to establish that the attorney's testimony would be prejudicial to his or her client ( see Frias v. Frias, 155 AD2d 585).


Summaries of

Goldberger v. Eisner

Appellate Division of the Supreme Court of New York, Second Department
Aug 8, 2005
21 A.D.3d 401 (N.Y. App. Div. 2005)

reversing disqualification of attorney because movant failed to establish "that the testimony of the opposing counsel is necessary to their case, and that such testimony is or may be prejudicial to the client"

Summary of this case from Chidekel v. Cabrini Medical Ctr.
Case details for

Goldberger v. Eisner

Case Details

Full title:ERNO GOLDBERGER, et al., Appellants, v. BENJAMIN EISNER et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 8, 2005

Citations

21 A.D.3d 401 (N.Y. App. Div. 2005)
2005 N.Y. Slip Op. 6303
799 N.Y.S.2d 778

Citing Cases

Chidekel v. Cabrini Medical Ctr.

Such speculation is clearly insufficient. See, Goldberger v. Eisner, 21 A.D.3d 401, 401 (2nd Dept. 2005).…

Zirbes v. John T. Mather Mem'l Hosp.

While the right to choose one's counsel is not absolute, disqualification of legal counsel during litigation…