Opinion
12-03-2015
ORBCO ADVISORS LLC, Plaintiff–Appellant, v. 400 FIFTH REALTY LLC, et al., Defendants–Respondents.
Edward B. Safran, New York, for appellant. Greenberg Traurig, LLP, New York (Daniel R. Milstein of counsel), for respondents.
Edward B. Safran, New York, for appellant.
Greenberg Traurig, LLP, New York (Daniel R. Milstein of counsel), for respondents.
Opinion
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered January 15, 2015, which denied plaintiff's motion to disqualify defendants' counsel, unanimously affirmed, with costs.
The court providently exercised its discretion by denying plaintiff's motion at this early stage of the litigation (see e.g. Dishi v. Federal Ins. Co., 112 A.D.3d 484, 976 N.Y.S.2d 379 [1st Dept.2013] ). Plaintiff did not meet its “heavy burden” (id. at 484, 976 N.Y.S.2d 379 [internal quotation marks omitted] ) of showing that the testimony of the subject attorneys would be both necessary and prejudicial to defendants (see Ullmann–Schneider v. Lacher & Lovell–Taylor PC, 110 A.D.3d 469, 470, 973 N.Y.S.2d 57 [1st Dept.2013]; see also Rules of Professional Conduct
rule 3.7). Rather, the record reflects that the attorneys' testimony would be cumulative, and “[a] witness whose testimony is, at best, cumulative is not a necessary witness” (Talvy v. American Red Cross in Greater N.Y., 205 A.D.2d 143, 153, 618 N.Y.S.2d 25 [1st Dept.1994], affd. 87 N.Y.2d 826, 637 N.Y.S.2d 687, 661 N.E.2d 159 [1995]; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 446, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ). Should discovery reveal otherwise, plaintiff may renew its motion, at which point defendants may not argue that plaintiff is merely seeking a tactical advantage (cf. Stilwell Value Partners IV, L.P. v. Cavanaugh, 123 A.D.3d 641, 642, 999 N.Y.S.2d 418 [1st Dept.2014] ).
FRIEDMAN, J.P., RENWICK, SAXE, KAPNICK, JJ., concur.