Opinion
2012-01-17
Michael TRIMARCO, respondent, v. DATA TREASURY CORPORATION, appellant.
Herrick, Feinstein, LLP, New York, N.Y. (Scott E. Mollen of counsel), McKenna Long & Aldridge, LLP, New York, N.Y. (William F. Plunkett and Richard B. Friedman of counsel), and Bracken Margolin Besunder, LLP, Islandia, N.Y. (John P. Bracken of counsel), for appellant (one brief filed). Robert J. Del Col, Smithtown, N.Y., for respondent.
Herrick, Feinstein, LLP, New York, N.Y. (Scott E. Mollen of counsel), McKenna Long & Aldridge, LLP, New York, N.Y. (William F. Plunkett and Richard B. Friedman of counsel), and Bracken Margolin Besunder, LLP, Islandia, N.Y. (John P. Bracken of counsel), for appellant (one brief filed). Robert J. Del Col, Smithtown, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated December 2, 2010, which granted that branch of the plaintiff's motion which was to disqualify nonparties Richard B. Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.
ORDERED that the order is reversed, on the law and in the exercise of discretion, with costs, and that branch of the plaintiff's motion which was to disqualify nonparties Richard B. Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action is denied.
The disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court ( see Nationscredit Fin. Servs. Corp. v. Turcios, 41 A.D.3d 802, 839 N.Y.S.2d 523). 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 ( see Aryeh v. Aryeh, 14 A.D.3d 634, 788 N.Y.S.2d 622). On a motion to disqualify an attorney, the burden of making such a showing is on the moving party ( see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 515 N.Y.S.2d 735, 508 N.E.2d 647; Nationscredit Fin. Servs. Corp. v. Turcios, 41 A.D.3d 802, 839 N.Y.S.2d 523).
The advocate-witness rules contained in the Rules of Professional Conduct ( see 22 NYCRR 1200.0), provide guidance, but are not binding authority, for the courts in determining whether a party's attorney should be disqualified during litigation ( see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 515 N.Y.S.2d 735, 508 N.E.2d 647). Rule 3.7 of the Rules of Professional Conduct 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” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]; see Falk v. Gallo, 73 A.D.3d 685, 901 N.Y.S.2d 99). In order to disqualify counsel, a party moving for disqualification must demonstrate 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 ( see S & S Hotel Ventures Ltd. Partnership v. 777 S.H., 69 N.Y.2d at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647; Daniel Gale Assoc., Inc. v. George, 8 A.D.3d 608, 609, 779 N.Y.S.2d 573).
Here, the plaintiff failed to demonstrate that the disqualification of Richard B. Friedman and his law firm, McKenna, Long & Aldridge, LLP, from representing the defendant in this action was warranted. There was no showing that Friedman's testimony was necessary, as there was no evidence that he had first-hand knowledge of material facts relevant to the case ( cf. Falk v. Gallo, 73 A.D.3d 685, 901 N.Y.S.2d 99). Further, the plaintiff failed to demonstrate that Friedman's testimony would be prejudicial to the defendant. Accordingly, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff's motion which was to disqualify Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.
The plaintiff's remaining contentions are without merit.