PHOENIX ASSURANCE COMPANY OF NEW YORK v. SHEA COMPANY INC (1997)

Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 12, 1996, which, insofar as appealed from, denied defendant's motion to dismiss the complaint on the ground of release and granted plaintiff's motion to disqualify defendant's counsel of record, unanimously modified, on the law, the facts and in the exercise of discretion, the motion to disqualify denied, with leave to renew at the close of discovery, and otherwise affirmed, without costs.

 The court properly denied the motion to dismiss since defendant is not unambiguously encompassed by the plain language of the release's definition of the term “releasee” (compare, DiIorio v. Gibson & Cushman, 166 A.D.2d 334, 566 N.Y.S.2d 1, appeal dismissed, lv dismissed 77 N.Y.2d 989, 571 N.Y.S.2d 915, 575 N.E.2d 401).   Although releasee is defined to include agents of the nonparty insured, there is an issue of fact at bar as to whose agent defendant was and as to whether the release was intended to protect defendant in this lawsuit (cf., Humphrey & Vandervoort v. C-Kitchens, 198 A.D.2d 840, 841-842, 604 N.Y.S.2d 415).

 As for the motion to disqualify, although plaintiff arguably showed that defendant's counsel played a crucial role in the negotiations underlying this dispute (compare, Hoerger v. Board of Educ., 129 A.D.2d 659, 514 N.Y.S.2d 402, with L & W Supply Corp. v. Ruthman, 135 A.D.2d 877, 521 N.Y.S.2d 877), plaintiff did not adequately show what the testimony of the advocate witness is expected to be, how it will be adverse to the client (see, Martinez v. Suozzi, 186 A.D.2d 378, 588 N.Y.S.2d 175), or how the client will be prejudiced (see, Matter of Moccio, 177 A.D.2d 627, 629, 576 N.Y.S.2d 333).   At this early “stage of the proceedings, where discovery has not yet been had, disqualification ․ is premature” (Kirshon, Shron, Cornell & Teitelbaum v. Savarese, 182 A.D.2d 911, 912, 581 N.Y.S.2d 487).

MEMORANDUM DECISION.