McELROY v. KITCHEN (1998)

Supreme Court, Appellate Division, Fourth Department, New York.

Al McELROY and Peggy Mc Elroy, Respondents, v. Denis A. KITCHEN, Jr., and Hollis M. Hite, Appellants.
Denis A. KITCHEN, Jr., and Hollis M. Hite, Third-Party Plaintiffs-Appellants, v. DIXON, DE MARIE & SCHOENBORN, P.C., and Daniel L. Schoenborn, Third-Party Defendants-Respondents.

Decided: October 02, 1998

Before GREEN, J.P., and LAWTON, CALLAHAN, BALIO and FALLON, JJ.

Laurence D. Behr, Buffalo, for Defendants-Appellants. De Marie & Schoenborn, by Daniel Schoenborn, Buffalo, for Plaintiff-Respondents. O'Shea, Reynolds & Cummings, by Kevin Cox, Buffalo, for Third-Party Defendants-Respondents.

Supreme Court properly granted the motion of third-party defendants to dismiss the third-party complaint seeking contribution and indemnification. We affirm that portion of the order for reasons stated in the decision at Supreme Court (Kane, J.).

The court also properly denied the motion of defendants to disqualify plaintiffs' attorney and his law firm from further representation of plaintiffs in this legal malpractice action. The fact that an attorney is in a position to provide relevant testimony regarding the merits and value of the underlying action does not warrant disqualification. Defendants failed to establish that the attorney was a necessary witness (see, S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647) and that his testimony would prejudice plaintiffs' case (see, Transcontinental Constr. Servs. v. McDonough, Marcus, Cohn & Tretter, 216 A.D.2d 19, 627 N.Y.S.2d 636; Balboaa Land Dev. v. Morris, 201 A.D.2d 850, 851-852, 608 N.Y.S.2d 536).

Order unanimously affirmed without costs.

MEMORANDUM:

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