Opinion
7499N Index 651745/18
10-30-2018
In re Gary SEGAL, Petitioner–Respondent, v. FIVE STAR ELECTRIC CORPORATION, et al., Respondents–Appellants.
Frankfurt Kurnit Klein & Selz PC, New York (Nicole I. Hyland, New York, of counsel), for appellants. Mintz & Gold LLP, New York (Steven G. Mintz, New York, of counsel), for respondent.
Frankfurt Kurnit Klein & Selz PC, New York (Nicole I. Hyland, New York, of counsel), for appellants.
Mintz & Gold LLP, New York (Steven G. Mintz, New York, of counsel), for respondent.
Sweeny, J.P., Mazzarelli, Kahn, Oing, Singh, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered July 3, 2018, which granted petitioner's motion to disqualify respondents' counsel in a separate arbitration, unanimously reversed, on the law and the facts, without costs, and the motion denied.
Petitioner, who was CEO of respondent Five Star Electric Corporation during the relevant period, has not established that Five Star's counsel, Daniel Horwitz, represented him personally in connection with certain government investigations into Five Star's business practices ( Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 562, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ; Gregor v. Rossi, 120 A.D.3d 447, 448, 992 N.Y.S.2d 17 [1st Dept. 2014] ; Campbell v. McKeon, 75 A.D.3d 479, 480–481, 905 N.Y.S.2d 589 [1st Dept. 2010] ). Petitioner's subjective belief that Horwitz was his personal attorney was not reasonable under the circumstances and did not give rise to an attorney-client relationship ( Pellegrino v. Oppenheimer & Co., Inc., 49 A.D.3d 94, 100–101, 851 N.Y.S.2d 19 [1st Dept. 2008] ).
Petitioner fails to identify any personal confidential information obtained by respondents' counsel ( Roberts v. Corwin, 118 A.D.3d 571, 573, 988 N.Y.S.2d 180 [1st Dept. 2014] ; Roddy v. Nederlander Producing Co. of Am., Inc., 96 A.D.3d 509, 510, 949 N.Y.S.2d 10 [1st Dept. 2012] ), or how any such information would not be discoverable after having been exchanged pursuant to the parties' lapsed joint defense agreement.
Petitioner has not met his heavy burden of establishing that the testimony of Five Star's former general counsel, Robert Saville, is necessary rather than cumulative, as required for his disqualification under the advocate-witness rule ( Orbco Advisors LLC v. 400 Fifth Realty LLC, 134 A.D.3d 448, 19 N.Y.S.3d 745 [1st Dept. 2015] ; 1010Data Inc. v. Firestone Enters., Inc., 88 A.D.3d 627, 628, 931 N.Y.S.2d 597 [1st Dept. 2011] ; Talvy v. American Red Cross in Greater N.Y., 205 A.D.2d 143, 152, 618 N.Y.S.2d 25 [1st Dept. 1994], affd 87 N.Y.2d 826, 637 N.Y.S.2d 687, 661 N.E.2d 159 [1995] ; Rules of Professional Conduct, rule 3.7 [22 NYCRR 1200.00] ). Neither did petitioner identify specific issues requiring Saville's testimony, the weight of such testimony, or the unavailability of other sources of such evidence ( Campbell v. McKeon, 75 A.D.3d at 481, 905 N.Y.S.2d 589 ).