ZUTLER v. DRIVERSHIELD CORP (2005)

In an action, inter alia, to recover damages for breach of contract and age discrimination, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Dunne, J.), dated January 8, 2004, as granted the plaintiff's motion to disqualify the defendants' attorney.

ORDERED that the order is reversed insofar as appealed from, on the facts and as a matter of discretion, with costs, and the motion is denied.

 Although the disqualification of an attorney is a matter which rests within the sound discretion of the trial court (see Boyd v. Trent, 287 A.D.2d 475, 731 N.Y.S.2d 209), a party's entitlement to be represented in ongoing litigation by counsel of its choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647).   Disqualification is warranted if the attorney's testimony, inter alia, is necessary (id.).   The challenging party carries the burden of demonstrating necessity (id. at 445, 515 N.Y.S.2d 735, 508 N.E.2d 647).

 The plaintiff's motion to disqualify the defendants' attorney was supported by affidavits that were speculative and conclusory as to the attorney's personal knowledge of the conduct at issue (id. at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647;  see Frias v. Frias, 155 A.D.2d 585, 547 N.Y.S.2d 652;  Plotkin v. Interco Dev. Corp., 137 A.D.2d 671, 524 N.Y.S.2d 763;  Ring Network v. Solerwitz, 125 A.D.2d 561, 509 N.Y.S.2d 631).   Thus, the plaintiff failed to meet his burden of establishing that the testimony of the defendants' attorney was necessary, and the Supreme Court improvidently exercised its discretion in disqualifying the attorney.