WENSLEY AND PARTNERS v. Sheldon Streisand, et al., third-party defendants-appellants. (1999)

In an action, inter alia, to recover damages for breach of fiduciary duty, the plaintiff and third-party defendants appeal from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered May 18, 1998, as granted the defendants' cross motion to disqualify the law firm of Sylvor and Richman, L.L.P., from representing the plaintiff or the third-party defendants on the basis that an attorney from that firm will likely be called as a witness to give necessary testimony in this action.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The law firm representing the plaintiff in this action, Sylvor & Richman, L.L.P., also represented the plaintiff and the third-party defendants with respect to a bankruptcy reorganization of the partnership in which the plaintiff was a general partner.   To rebut the plaintiff's claims that the remaining general partners, the defendants Vincent Polimeni and Polimeni Grantor Trust, breached their fiduciary duties in obtaining refinancing of the partnership, the defendants alleged that they intend to call a partner of the law firm to testify regarding the extensive negotiations which took place during the refinancing of the partnership.   Since it is apparent that the testimony provided by the attorney may be prejudicial to the plaintiff and the third-party defendants (see, Code of Professional Responsibility DR 5-102[B] [22 NYCRR 1200.21(b) ] ), the Supreme Court providently exercised its discretion in disqualifying the law firm from representing the plaintiff or the third-party defendants (see, Fairview at Old Westfield v. European Am. Bank, 186 A.D.2d 238, 588 N.Y.S.2d 339;  People v. Amato, 173 A.D.2d 714, 716, 570 N.Y.S.2d 817, cert. denied 502 U.S. 1058, 112 S.Ct. 935, 117 L.Ed.2d 107;   Matter of Bartoli, 143 A.D.2d 830, 533 N.Y.S.2d 324).

MEMORANDUM BY THE COURT.