MAXON v. WOODS OVIATT GILMAN LLP (2007)

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

Joseph P. MAXON, Plaintiff-Appellant, v. WOODS OVIATT GILMAN LLP and Anthony Cotroneo, Defendants-Respondents.

Decided: November 09, 2007

PRESENT: SCUDDER, P.J., MARTOCHE, SMITH, LUNN, AND PINE, JJ.

Remington, Gifford, Williams & Colicchio, LLP, Rochester (Robert B. Koegel of Counsel), for Plaintiff-Appellant. Woods Oviatt Gilman LLP, Rochester (Donald W. O'Brien, Jr., of Counsel), Defendant-Respondent Pro Se, and for Anthony Cotroneo, Defendant-Respondent.

Plaintiff appeals from an order denying his motion in this legal malpractice action seeking to disqualify defendant law firm from representing a nonparty witness at a subpoenaed deposition. We affirm for reasons stated in the decision at Supreme Court. We add only that plaintiff has standing to bring this motion (see Vegetable Kingdom v. Katzen, 653 F.Supp. 917, 923 n. 4 [N.D.N.Y.] ), and that the court properly determined under the circumstances of this case that the nonparty witness, who had an existing attorney-client relationship with defendant law firm, was entitled to counsel of his own choosing (see generally Solow v. Grace & Co., 83 N.Y.2d 303, 310, 610 N.Y.S.2d 128, 632 N.E.2d 437; United States v. Occidental Chem. Corp., 606 F.Supp. 1470, 1474 [W.D.N.Y.] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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