Opinion
Index #2009-2732
07-20-2010
RESTAURANT CREATIVE CONCEPTS MANAGEMENT, LLC, Plaintiff, v. NORTHEAST RESTAURANT DEVELOPMENT, LLC d/b/a VIN SANTO, Defendant.
APPEARANCES Ianniello, Anderson & Reilly, P.C. Attorneys for the Plaintiff 805 Route 146, Northway Nine Plaza Clifton Park, New York 12065 McNamee, Lochner, Titus & Williams, P.C. Attorneys for the Defendant 677 Broadway Albany, New York 12207
DECISION and ORDER
RJI # 45-1-2009-1706 APPEARANCES Ianniello, Anderson & Reilly, P.C.
Attorneys for the Plaintiff
805 Route 146, Northway Nine Plaza
Clifton Park, New York 12065 McNamee, Lochner, Titus & Williams, P.C.
Attorneys for the Defendant
677 Broadway
Albany, New York 12207 STEPHEN A. FERRADINO, J.
The plaintiff has requested an order of this court directing counsel for the defendants to withdraw its representation as attorneys for Northeast Restaurant Development, LLC d/b/a Vin Santo (hereinafter Northeast). The defendant has opposed the motion.
This matter arises out of a contract dispute. The parties engaged in prior motion practice wherein each party argued it was entitled to summary judgment. The motions were denied in the courts decision and order dated March 16, 2010. This court found, amongst other things, regarding the agreement that "The lack of clarity as to the dates presents a question of fact."
The plaintiff contends "there is a strong likelihood" it will call the attorneys that negotiated and drafted the agreement in this matter as witnesses at trial. The plaintiff anticipates seeking to elicit testimony from Attorney Valenza regarding the intent of the contract and the parties. Specifically the plaintiff contends that Attorney Valenza will testify that the " commencement date" referred to in the contract was May. As a result the plaintiff argues that pursuant to the New York Rules of Professional Conduct, Rule 3.7 (b) counsel for the defendant must withdraw due to the likelihood of being called as a witness. The defendant counters that this is a solely a strategic maneuver on the part of plaintiff's counsel to prejudice the defendant.
Whether or not to disqualify an attorney is a matter left to the discretion of the court. Gulino v Gulino, 35 AD3d 812 [2006]. When a party seeks to disqualify his adversary he bears the burden of demonstrating that disqualification is warranted. Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 636 [1998]; S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437 [1987]. In making this determination the court must balance and consider the ethical standards that bind attorneys and the rights of a litigant to representation by the attorney of its choice. While a litigant's right to counsel is not absolute it should not be set aside lightly. Matter of Lambrou, 208 AD2d 1093, 1094 [1994].
The witness-advocate rule is now found at Rule 3.7 of the New York Rules of Professional Conduct that became effective April 1, 2009 (22 NYCRR § 1200.29). The rule prohibits a lawyer from acting as a witness in a matter where the "lawyer is likely to be a witness on a significant issue of fact." However, a lawyer is allowed to testify on a significant issue and may remain as a party's advocate if:
(1) the testimony relates solely to an uncontested issue; (2) the testimony relates solely to the nature and value of legal services rendered in the matter; (3) disqualification of the lawyer would work substantial hardship on the client; (4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or (5) the testimony is authorized by the tribunal (22 NYCRR § 1200.29[a]).
In this case Vincent Valenza, an attorney who specializes in transactional work, drafted a proposed management agreement at the request of Craig Allen a principal with the defendant. Attorney Valenza received and reviewed a proposed agreement prepared by plaintiff's counsel. At the request of Mr. Allen, Attorney Valenza prepared a revised draft agreement and forwarded it to Mr. Allen. Without further involvement or review by Attorney Valenza, Mr. Allen and the plaintiff's representative executed the draft agreement. Attorney Valenza was not involved in any final negotiations that took place between the parties prior to execution of the contract.
There is no evidence presented in the record that supports a finding that Attorney Valenza has any testimony to provide regarding the final negotiations between the parties. Further since uninvolved in any final conversations between the parties Attorney Valenza would not have any first hand knowledge of any alleged oral agreements between them that may qualify as evidence to clarify any terms of the agreement that the court found to lack clarity. Any subsequent conversations about such conversations between Attorney Valenza and his client would be considered privileged.
Even if Attorney Valenza has relevant knowledge or involvement in the transaction at issue this alone is not enough to disqualify him and his firm based on the advocate-witness rule. Talvy v. American Red Cross in Greater NY, 205 AD2d 143, 152 [1994], affd 87 NY2d 826 [1995]. Not only must the plaintiff establish Attorney Valenza is a necessary witness, or that he intends to call him as a witness, but also that the testimony Mr. Valenza is expected to give will be adverse to his own client's interests. S & S Hotel Ventures L.P., 69 NY2d 437, 446. The plaintiff has failed to satisfy these necessary burdens on the record presented. Mr. Valenza's affirmation states that even if called as a witness he would not be in a position to provide testimony that is adverse or prejudicial to his client Mr. Allen's interests. The plaintiff's motion to disqualify defendant's counsel is denied.
Any relief not specifically granted is denied. No costs are awarded to any party. The original decision and order shall be forwarded to the defendant for filing and entry. The underlying papers will be filed by the court. Date: July 20, 2010
Malta, New York
/s/_________
STEPHEN A. FERRADINO, J.S.C. Papers received and Considered: Notice of Motion dated April 26, 2010 Affirmation of Matthew Mazur, Esq., with attached Exhibit 1 Affirmation of Scott C. Paton, Esq., affirmed May 21, 2010 Affirmation of Vincent L. Valenza, Esq., affirmed May 21, 2010with attached Exhibits A-B Reply Affirmation of Matthew Mazur, Esq., dated May 27, 2010