GILLESPIE v. CITY OF YONKERS (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an amended order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated July 25, 2023.  The amended order, insofar as appealed from, denied that branch of the plaintiff's motion which was to disqualify the defendant's counsel and, sua sponte, rejected a proposed judicial subpoena for the testimony of the defendant's counsel.

ORDERED that the appeal from so much of the amended order as, sua sponte, rejected a proposed judicial subpoena for the testimony of the defendant's counsel is dismissed, without costs or disbursements;  and it is further,

ORDERED that the amended order is affirmed insofar as reviewed, without costs or disbursements.

On March 1, 2023, the plaintiff commenced this action to recover damages for personal injuries she allegedly sustained after she slipped and fell at an intersection located in Yonkers on November 19, 2021.  The defendant interposed an answer in which it asserted, inter alia, an affirmative defense that the action was barred by the applicable statute of limitations.  The plaintiff moved, among other things, to disqualify the defendant's counsel under rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that the testimony of the defendant's counsel is necessary to the plaintiff's claim that the defendant's statute of limitations defense should be barred by the doctrine of equitable estoppel.  The defendant opposed the motion.  In an amended order dated July 25, 2023, the Supreme Court, inter alia, denied that branch of the plaintiff's motion and, sua sponte, rejected a proposed judicial subpoena for the testimony of the defendant's counsel.

“The disqualification of an attorney is a matter that rests within the sound discretion of the court” (Alnoukari v. Nokari, 218 A.D.3d 527, 528, 191 N.Y.S.3d 174 [internal quotation marks omitted];  see Matter of Blauman–Spindler v. Blauman, 184 A.D.3d 636, 637, 123 N.Y.S.3d 831).  “A party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted” (Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 A.D.3d 510, 510, 103 N.Y.S.3d 559 [internal quotation marks omitted];  see Falk v. Gallo, 73 A.D.3d 685, 685, 901 N.Y.S.2d 99).  On a motion to disqualify an attorney, “[t]he moving party bears the burden of showing that disqualification is warranted” (Matter of Blauman–Spindler v. Blauman, 184 A.D.3d at 637, 123 N.Y.S.3d 831 [internal quotation marks omitted];  see Greenberg v. Grace Plaza Nursing & Rehabilitation Ctr., 174 A.D.3d at 510, 103 N.Y.S.3d 559).

“Rule 3.7[a] of the Rules of Professional Conduct provides that unless certain exceptions apply, ‘[a] lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact’ ” (Falk v. Gallo, 73 A.D.3d at 686, 901 N.Y.S.2d 99, quoting Rules of Prof Conduct [22 NYCRR 1200.0] rule 3.7[a]).  “A party moving to disqualify counsel on the ground that he or she may be called as a witness must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party” (Gamez v. Lopez, 220 A.D.3d 844, 846, 198 N.Y.S.3d 187;  see Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, LLP, 218 A.D.3d 760, 761, 194 N.Y.S.3d 495).  “Merely because an attorney has relevant knowledge or was involved in the transaction at issue does not make that attorney's testimony necessary” (Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, LLP, 218 A.D.3d at 761, 194 N.Y.S.3d 495 [internal quotation marks omitted]).  “Testimony may be relevant and even highly useful but still not strictly necessary.  A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 446, 515 N.Y.S.2d 735, 508 N.E.2d 647;  see Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, LLP, 218 A.D.3d at 761, 194 N.Y.S.3d 495).

Here, the plaintiff failed to demonstrate that any anticipated testimony by the defendant's counsel would be necessary to her case.  Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to disqualify the defendant's counsel (see Gamez v. Lopez, 220 A.D.3d at 846, 198 N.Y.S.3d 187;  Levy v. 42 Dune Rd., LLC, 162 A.D.3d 651, 652–653, 77 N.Y.S.3d 498).

The remainder of the plaintiff's appeal must be dismissed.  No appeal lies as of right from so much of the amended order as, sua sponte, rejected the proposed judicial subpoena for the testimony of the defendant's counsel (see CPLR 5701[a][2];  Sholes v. Meagher, 100 N.Y.2d 333, 335, 763 N.Y.S.2d 522, 794 N.E.2d 664), and, under the circumstances, we decline to grant leave to appeal from that portion of the amended order (see CPLR 5701[c]).

CHAMBERS, J.P., WOOTEN, VOUTSINAS and LOVE, JJ., concur.