IN RE: ADVENT ASSOCIATES (2008)

Appeal from an order of the Supreme Court (Platkin, J.), entered June 11, 2008 in Albany County, which, among other things, granted plaintiff's motion to disqualify defendants' counsel.

Rino Crisafulli is the sole member of plaintiff.   He alleges that he entered into a broker agreement with defendant George Vogt III, acting on behalf of the other named defendants, which authorized Crisafulli to act as broker for the sale of certain real property owned by defendants.   Crisafulli further alleges that the agreement was reduced to writing and signed by himself and Vogt. Defendants deny the existence of the agreement.   According to plaintiff, he procured a buyer for the property and, after learning that the sale had been completed, requested payment of a brokerage commission of $1 million pursuant to the alleged agreement.   Defendants, through counsel, rejected plaintiff's request.   Plaintiff then commenced this action setting forth causes of action sounding in breach of contract, unjust enrichment, fraud and conversion.   Plaintiff moved to disqualify defendants' counsel, William Keniry, on the basis that he was a material witness in the case.   Supreme Court granted plaintiff's motion.   Defendants now appeal and we reverse.

 The right to choose one's own counsel is a valued right (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 440, 443, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ).   Thus, the restriction of that right must be carefully scrutinized (see id. at 443, 515 N.Y.S.2d 735, 508 N.E.2d 647;  Plotkin v. Interco Dev. Corp., 137 A.D.2d 671, 674, 524 N.Y.S.2d 763 [1988] ).   However, a lawyer may not ethically continue to represent a client where it becomes apparent that the lawyer “ought to be called as a witness” (Code of Professional Responsibility DR 5-102[A] [22 NYCRR 1200.21(a) ];  see Code of Professional Responsibility DR 5-101[A] [22 NYCRR 1200.20(a) ];  see also S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d at 444, 515 N.Y.S.2d 735, 508 N.E.2d 647).   In order to warrant disqualification, the testimony sought from the lawyer witness must be necessary (see Bullard v. Coulter, 246 A.D.2d 705, 706, 667 N.Y.S.2d 495 [1998] ).  “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 at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647 [citations omitted] ).

 Here, we find that plaintiff has not demonstrated that Keniry's testimony was unique to him, and, therefore, necessary, rather than merely relevant and potentially useful or valuable (see id. at 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647;  Bullard v. Coulter, 246 A.D.2d at 706, 667 N.Y.S.2d 495;  Burdett Radiology Consultants v. Samaritan Hosp., 158 A.D.2d 132, 135, 557 N.Y.S.2d 988 [1990] ).   Therefore, Supreme Court erred in granting plaintiff's motion.

ORDERED that the order is reversed, on the law, with costs, and motion denied.

STEIN, J.

CARDONA, P.J., PETERS, CARPINELLO and KAVANAGH, JJ., concur.