No. CA 07-00947.
November 9, 2007.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J), entered March 13, 2007 in a legal malpractice action. The order denied plaintiffs motion to disqualify defendant Woods Oviatt Gilman LLP from representing a nonparty witness at a subpoenaed deposition.
REMINGTON, GIFFORD, WILLIAMS COLICCHIO, LLP, ROCHESTER (ROBERT B. KOEGEL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
WOODS OVIATT GILMAN LLP, ROCHESTER (DONALD W. O'BRIEN, JR., OF COUNSEL), DEFENDANT-RESPONDENT PRO SE, AND FOR ANTHONY COTRONEO, DEFENDANT-RESPONDENT.
Present: Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order denying his motion in this legal malpractice action seeking to disqualify defendant law firm from representing a nonparty witness at a subpoenaed deposition. We affirm for reasons stated in the decision at Supreme Court. We add only that plaintiff has standing to bring this motion ( see Vegetable Kingdom, Inc. v Katzen, 653 F Supp 917, 923 n 4 [ND NY 1987]), and that the court properly determined under the circumstances of this case that the nonparty witness, who had an existing attorney-client relationship with defendant law firm, was entitled to counsel of his own choosing ( see generally Solow v Grace Co., 83 NY2d 303, 310; United States v Occidental Chem. Corp., 606 F Supp 1470, 1474 [WD NY 1985]).