Opinion
12-23-2015
Jill SPIELBERG, et al., appellants, v. TWIN OAKS CONSTRUCTION COMPANY, LLC, et al., respondents.
Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jill F. Spielberg of counsel), for appellants. Baker Leshko Saline & Blosser, LLP, White Plains, N.Y. (Katie R. Wendle and Mitchell J. Baker of counsel), for respondents.
Harold, Salant, Strassfield & Spielberg, White Plains, N.Y. (Jill F. Spielberg of counsel), for appellants.
Baker Leshko Saline & Blosser, LLP, White Plains, N.Y. (Katie R. Wendle and Mitchell J. Baker of counsel), for respondents.
In an action, inter alia, to recover damages for breach of contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), dated February 5, 2015, as granted that branch of the defendants' motion which was to disqualify Leonard Spielberg from representing the plaintiffs in this action.
ORDERED that the order is affirmed insofar as appealed from, with costs."The disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" (Lauder v. Goldhamer, 122 A.D.3d 908, 910, 998 N.Y.S.2d 79 ; see Nationscredit Fin. Servs. Corp. v. Turcios, 41 A.D.3d 802, 802, 839 N.Y.S.2d 523 ). "A party's entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted" (Aryeh v. Aryeh, 14 A.D.3d 634, 634, 788 N.Y.S.2d 622 ; see Gulino v. Gulino, 35 A.D.3d 812, 812, 826 N.Y.S.2d 903 ; Dominguez v. Community Health Plan of Suffolk, Inc., 284 A.D.2d 294, 294, 725 N.Y.S.2d 377 ). "The advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0 ) rule 3.7 provide guidance, but not binding authority, for courts in determining whether to disqualify an attorney" (Gould v. Decolator, 131 A.D.3d 448, 449, 15 N.Y.S.3d 145 ). " [P]ursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0 ), 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’ " (Friia v. Palumbo, 89 A.D.3d 896, 896, 932 N.Y.S.2d 542 ).
Here, the Supreme Court providently exercised its discretion in granting that branch of the defendants' motion which was to disqualify Leonard Spielberg from representing the plaintiffs in this action. He participated in negotiating the subject contract and was likely to be a witness with respect to a significant factual issue in this litigation. Under these circumstances, his disqualification was warranted (see Gould v. Decolator, 131 A.D.3d at 449–450, 15 N.Y.S.3d 145 ; Friia v. Palumbo, 89 A.D.3d at 896–897, 932 N.Y.S.2d 542 ; Falk v. Gallo, 73 A.D.3d 685, 686, 901 N.Y.S.2d 99 ; cf. 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 ).
The plaintiffs' remaining contention is without merit.
MASTRO, J.P., DICKERSON, ROMAN and MALTESE, JJ., concur.