Warshaw Burstein Cohen Schlesinger & Kuh, LLPv.Longmire

Appellate Division of the Supreme Court of New York, First DepartmentMar 22, 2011
82 A.D.3d 586 (N.Y. App. Div. 2011)
82 A.D.3d 586920 N.Y.S.2d 232011 N.Y. Slip Op. 2067

No. 4580.

March 22, 2011.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered on or about December 6, 2010, as amended by order, same court and Justice, entered on or about December 9, 2010, which granted plaintiff's motion to disqualify defendant's counsel from representing him, unanimously affirmed, without costs.

Law Office of Daniel L. Abrams, PLLC, New York (Daniel L. Abrams of counsel), for appellant.

Warshaw Burstein Cohen Schlesinger Kuh, LLP, New York (Avi Lew of counsel), for respondent.

Before: Tom, J.P., Andrias, Sweeny, Moskowitz and Renwick, JJ.


Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests ( see Sokolow, Dunaud, Mercadier Carreras v Lacher, 299 AD2d 64, 75-76; Martinez v Suozzi, 186 AD2d 378).

While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner ( see CPLR 2106), under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" ( see Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408, 409, lv denied 75 NY2d 702; see CPLR 2001).