Opinion
8496/15
09-18-2017
Yomi Homes Inc., Plaintiff, v. Monayam Hussain AND JASSE CAPITAL LTD., Defendants.
Attorney for Plaintiff Zackary Karram Zelenitz, Shapiro & D'Agostino, P.C. 138-44 Queens Boulevard Briarwood, New York 11435 (718) 523-1111 Attorney for Defendant Joseph Gillette Ginsburg & Misk, LLP 215-48 Jamaica Avenue Queens Village, New York 11428 (718) 468-0500
Attorney for Plaintiff Zackary Karram Zelenitz, Shapiro & D'Agostino, P.C. 138-44 Queens Boulevard Briarwood, New York 11435 (718) 523-1111 Attorney for Defendant Joseph Gillette Ginsburg & Misk, LLP 215-48 Jamaica Avenue Queens Village, New York 11428 (718) 468-0500 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of Yomi Homes Inc. (hereinafter Yomi) filed on June 22, 2017 with the Kings County Clerk's office (KCCO) under motion sequence number four, for an order disqualifying Ginzburg & Misk, LLP (hereinafter the law firm) as attorneys for the defendants. - Notice of motion - Affirmation in support - Affidavit in support - Exhibits A-L - Affidavit in opposition - Exhibits A-E
BACKGROUND
On July 7, 2015, March 28, 2017, Yomi commenced the instant action for, among other things, specific performance of a real estate contract, by filing a summons, verified complaint and notice of pendency (hereinafter the commencement papers) with the KCCO.
On or about September 4, 2015, defendant Monayam Hussain (hereinafter Hussain) interposed an answer by his attorney Brian C. Faranda. On March 28, 2016, the law firm of Ginzburg & Misk, LLP was substituted as counsel for Hussain. By amended verified complaint dated January 19, 2017, Yomi added Jasse Capital Ltd. (hereinafter Jasse) as a defendant. Hussain and Jasse interposed a joint verified answer to the amended complaint dated May 15, 2017 by their attorneys Ginzburg & Misk, LLP (hereinafter the law firm).
The amended verified complaint alleges the following salient facts. On January 4, 2012, Yomi, as buyer, and Hussain, as seller, entered into a real estate contract (hereinafter the contract) for certain real property located at 67 Clarkson Avenue, Brooklyn, New York (hereinafter the subject property). Yomi gave Hussain $10,000.00 as a down payment to be held in escrow until the closing toward the purchase price of $562,500.00. Thereafter, Hussain refused Yomi's repeated demand to close the sale, in effect, repudiating the contract. Defendant Jasse had notice of Yomi's interest in the subject property and, nevertheless, purchased it from Hussain.
The amended complaint contains thirty four allegations of fact in support of seven causes of action. The first cause of action seeks a declaration judgment that the contract for the subject property is valid and enforceable. The second cause of action seeks an order directing Hussain to specifically perform the contract. The third and fourth cause of action seeks damages for breach of the contract. The fifth cause of action alleges that Jasse is bound by any judgement entered against Hussain. The sixth cause of action is asserted against Jasse for tortious interference with the contract. The seventh cause of action seeks an order declaring that the deed transferring title to the subject property from Hussain to Jasse is void.
LAW AND APPLICATION
The following facts are not in dispute. Brian C. Faranda, Esq. was Hussain's transactional attorney on the contract and the attorney who interposed Hussain's answer to the original complaint. By consent to change attorney dated May 28, 2016, the law firm substituted Brian C. Faranda, Esq. as Hussain's counsel in the action. The firm also represented Hussain as his transactional counsel in the sale of the subject property to Jasse. Sometime thereafter the law firm interposed a joint verified amended answer to the amended complaint dated January 19, 2017 on behalf of Hussain and Jasse.
Yomi seeks a court order disqualifying the law firm from representing the defendants on the basis that the law firm is likely to be a witness on a significant issue of fact. Rules 3.7 (a) of the Rules of Professional Conduct (22) NYCRR 1200.0) provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (Twin Sec., Inc. v Advocate & Lichtenstein, LLP, 97 AD3d 500, 500 [1st Dept 2012]).
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 counsel's testimony is necessary (Luciano v Kennedy, 151 AD3d 957 [2nd Dept 2017] citing, S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 446 [1987]; Falk v Gallo, 73 AD3d 685, 686 [2nd Dept 2010]). Testimony may be relevant and even highly useful but still not strictly necessary (Wolfson v Posner, 57 AD3d 979, 980 [2nd Dept 2008]). A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence (Wolfson, 57 AD3d at 980 citing, S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 443).
"Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants" (Luciano, 151 AD3d 957 citing, S & S Hotel Ventures Ltd. Partnership, 69 NY2d at 443). 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 (Luciano, 151 AD3d 957 citing, Scialdone v. Stepping Stones Associates, L.P., 148 AD3d 950 [2nd Dept 2017], Trimarco v Data Treasury Corp., 91 AD3d 756, 757 [2nd Dept 2012]).
Yomi contends that the testimony of an employee of the law firm is critical to an understanding as to how and why defendant Jasse proceeded to purchase the subject property from Hussain despite being on notice of Yomi's claims. Yomi further contends that without such testimony there would be little available evidence on this issue. Yomi has failed to demonstrate that disqualifying nonparty Ginsburg & Minsk, LLP from representing the defendants in this action is warranted.
Clearly, the representative of Jasse who purchased the property from Hussain would be available to explain why Jasse chose to do so, assuming such testimony would be relevant. Yomi's claim of necessity are unsupported and conclusory. Consequently, Yomi has made no showing that the testimony of any of the law firm's attorneys was necessary to establish any aspect of the plaintiff's case (Luciano, 151 AD3d 957 citing, Homar v American Home Mtge. Acceptance, Inc., 119 AD3d 901, 901 [2nd Dept 2014]; Trimarco, 91 AD3d at 757).
CONCLUSION
Yomi Homes Inc. motion for an order disqualifying Ginzburg & Misk, LLP as attorneys for the defendants is denied.
The foregoing constitutes the decision and order of this Court. Enter: September 18, 2017 J.S.C.