CHEER HALL LLC v. FRASCA (2026)

The following e-filed documents, listed by NYSCEF document number 42-51, 54-55, were read and considered in connection with Defendant/Third-Party Plaintiffs SABELLE FRASCA and CURT FRASCA's Order to Show Cause (Motion Seq. No. 1) for: (a) an order disqualifying Plaintiffs' counsel, Stephen M. Honan, Esq. and his firm FEERICK NUGENT MACCARTNEY, PLLC, from further representation of Plaintiffs in this action because Mr. Honan is a necessary witness on disputed issues of fact that are central to Plaintiffs' claims and Defendants' defenses, and his continued role would impermissibly intertwine advocacy with testimony, (b) staying all proceedings in this action pending the determination of this motion; and (c) granting such other and further relief as this Court deems just and proper.

BACKGROUND

This action arises from a dispute over stormwater drainage conditions between neighboring properties in Rockland County. Plaintiffs Cheer Hall LLC and Andrea B. Currier (collectively, “Plaintiffs”) commenced this action on July 12, 2024, alleging that Defendants Sabelle Frasca and Curt Frasca (collectively, “Defendants”) designed, constructed, and maintained drainage structures that directed water and debris onto Plaintiffs' property, causing property damage. Defendants filed an Answer on August 26, 2024, and thereafter commenced a third-party action against LaBozz-2 Builders Corp.

Before the commencement of this litigation, in October 2022, Plaintiffs' counsel Stephen M. Honan, Esq. of the firm Feerick Nugent MacCartney PLLC (hereinafter “FNM”) attended a site inspection on the Cheer Hall property in the company of William Bosley of LaBozz-2 Builders Corp. and Stephen Lubeck of Greenbush Construction Company, who represented the Frascas' interests at the meeting. On November 28, 2022, Mr. Honan transmitted a letter to Defendant Sabelle Frasca enclosing a draft stormwater maintenance agreement and a concept plan proposing drainage improvements on both properties. This letter and its attachments were prepared to resolve the stormwater issue before litigation was commenced.

Discovery has been contentious. By Order dated January 21, 2026, this Court set firm discovery deadlines. After continued difficulties, a further conference was held on April 13, 2026, at which additional discovery deadlines were imposed, with all depositions to be completed by June 15, 2026. As of the filing of this motion, the deposition of Defendant Curt Frasca had been completed on May 7, 2026, and the deposition of William Bosley, on behalf of third-party defendant LaBozz-2 Builders Corp., had been completed on May 13, 2026. The deposition of Defendant Sabelle Frasca had not been scheduled, and the non-party deposition of Mark Ross of Ross Brothers Landscaping Company had been adjourned without a date.

Now before the Court is Defendants' motion, brought by Order to Show Cause signed June 4, 2026, seeking: (a) disqualification of Plaintiffs' counsel Stephen M. Honan, Esq. and his firm FNM from further representation of Plaintiffs; and (b) a stay of all proceedings pending the determination of this motion. The motion was made returnable June 11, 2026. Plaintiffs oppose the motion in its entirety. For the reasons that follow, the motion is DENIED.

LEGAL STANDARD

A party's entitlement to be represented by counsel of his or her own choosing is a valued right that should not be abridged absent a clear showing that disqualification is warranted. See Schmidt v. Capone, 243 AD3d 709, 711 [2d Dept 2025]. Disqualification motions are subject to careful scrutiny, and the movant bears the burden of demonstrating that disqualification is warranted. See S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437, 445 [1987]. The decision rests within the sound discretion of the trial court. See Diaz v. Gomez, 247 AD3d 979 [2d Dept 2026].

Rule 3.7(a) of the New York Rules of Professional Conduct (22 NYCRR 1200.0) provides that a lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact, unless one of five enumerated exceptions applies, including where: the testimony relates to an uncontested issue; the testimony concerns only the nature of legal services rendered; disqualification would work substantial hardship on the client; the testimony relates solely to a matter of formality; or the testimony is authorized by the tribunal. See Rule 3.7(a)(1)-(5).

To disqualify counsel on the ground that he or she may be called as a witness, the moving party must demonstrate both: (1) that the testimony of opposing counsel is necessary to the movant's case; and (2) that such testimony would be prejudicial to the opposing party—i.e., to the attorney's own client, not to the movant. See HoganWillig, PLLC v. Swormville Fire Co., 210 A3d 1369, 1372 [4th Dept 2022]. Critically, “[m]erely because an attorney has relevant knowledge or was involved in the transaction at issue does not make that attorney's testimony necessary.” Id. “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.” Id. (citation omitted). Where an attorney's testimony “would at most be cumulative or relate only to matters of formality,” disqualification is not warranted. See S & S Hotel Ventures, 69 NY2d at 446.

DISCUSSION

I. Defendants Have Failed to Establish That Mr. Honan Is a Necessary Witness

Defendants argue that Mr. Honan is a necessary witness because he personally attended the October 18, 2022, site inspection, authored the November 28, 2022, letter and accompanying concept plan and draft maintenance agreement, and that his testimony is required on disputed issues of notice, causation, and mitigation. See 6/11/26 Tr.,¹ p 7, lines 8-19. This Court is unpersuaded.

As a threshold matter, Defendants entirely fail to identify any prejudice to Plaintiffs—Mr. Honan's own clients—that would result from his testimony. This failure is fatal to the motion. See HoganWillig, 210 AD3d at 1372 (reversing grant of disqualification motion where defendant failed to demonstrate that attorney's testimony would be prejudicial to plaintiff). Rule 3.7 is not a weapon to be wielded by an opposing party for its own tactical benefit; its animating concern is protecting the attorney's client from the conflict that arises when an advocate must also testify on his client's behalf. Defendants' papers identify only prejudice to themselves—not to Plaintiffs— and this misapprehension of the controlling legal standard alone requires denial of the motion.

Even setting aside this threshold deficiency, Defendants have not established that Mr. Honan's testimony is necessary rather than merely relevant or useful. The October 18, 2022, site inspection was attended by multiple participants, including William Bosley of LaBozz-2 Builders Corp. and Stephen Lubeck of Greenbush Construction Company, who represented the Frascas' interests at the meeting. See 6/11/26 Tr., p. 8, lines 11-21, p. 13, lines 1-7. The deposition of Mr. Bosley has already been completed (see 6/11/26 Tr., p. 14, lines 24-25), and Mr. Lubeck—who upon information and belief resides in Nyack, New York—remains available for deposition. See 6/11/26 Tr., p. 24, lines15-25, p. 25, line 1. Notably, Defendants have not attempted to depose Mr. Lubeck, who was their own contractor's representative at the very meeting whose substance they now claim only Mr. Honan can adequately describe. The failure to pursue this plainly available alternative witness weighs heavily against a finding of necessity.

The November 28, 2022, letter and its attachments, including the draft maintenance agreement and concept plan, are documentary evidence already in the record. Mr. Honan's authorship of these documents does not automatically render him a necessary witness; the documents speak for themselves, and their contents may be examined through other participants to the negotiations. Moreover, the letter was characterized by Plaintiffs—credibly, given its language—as a pre-litigation settlement communication proposing a mutually agreeable resolution. The probative weight of testimony regarding a settlement overture, as opposed to the operative facts of the underlying drainage dispute, is limited.

The cases upon which Defendants rely are distinguishable. In Lauder v. Goldhamer, 122 AD3d 908 [2d Dept 2014], the attorney to be disqualified was the only attorney involved in the plaintiff's execution of a retainer agreement that was itself the subject of the litigation—a situation bearing no resemblance to the one here. In Emerald Green Homeowners Ass'n, Inc. v. Aaron, 90 AD2d 628 [3d Dept 1982], the attorney had served as the organization's secretary for two years and possessed unique institutional knowledge far exceeding that of any other available witness. Here, Mr. Honan was present at a single site meeting alongside other participants who remain available and has authored a letter that is itself in evidence. He plainly does not occupy the uniquely irreplaceable role of the attorneys disqualified in Lauder or Emerald Green.

Similarly, B.B. v. E.E., 69 Misc 3d 796 [Fam. Ct. Westchester Cty. 2020], is inapposite. In that case, disqualification was warranted in part because the attorney had already provided testimony through an ex parte appearance before the court, recounting events for which he himself was the only witness. Mr. Honan has made no such extrajudicial statements in these proceedings.

In sum, Defendants have not carried their burden of demonstrating that Mr. Honan's testimony is necessary—as opposed to potentially useful—or that it cannot be obtained through the other witnesses and documentary evidence already available. Where, as here, discovery remains ongoing, and several participants to the relevant events have not yet been deposed, it would be premature to conclude that no adequate substitute for Mr. Honan's testimony exists. See S & S Hotel Ventures, 69 NY2d at 446.

II. Defendants Have Not Established That Mr. Honan's Testimony Would Prejudice Plaintiffs

Even if this Court were to find that Mr. Honan possessed some necessary, non-cumulative testimony, Defendants have identified no prejudice to Plaintiffs arising from his continued representation. Defendants' prejudice argument is directed entirely at themselves—they complain that Mr. Honan's dual role as advocate and witness would afford Plaintiffs an unfair advantage. But the question under Rule 3.7 is whether the attorney's testimony is likely to be prejudicial to his own client—not to the opposing party. See HoganWillig, 210 AD3d at 1372. Defendants' failure to address this element of the governing test is a second and independently sufficient ground for denial.

III. The Court Retains Discretion to Authorize Mr. Honan's Testimony

Even if the Court were to find that Mr. Honan is a necessary witness whose testimony might implicate Rule 3.7, the Court retains inherent authority under Rule 3.7(a)(5) to authorize his testimony and permit his continued representation of Plaintiffs. In exercising this discretion, the Court may consider the prejudice that disqualification would impose on Plaintiffs, the availability of other witnesses and evidence on the same factual issues, the timing and apparent motivation of the disqualification motion, and the effect of disqualification on the orderly progress of this litigation.

All of these factors weigh against disqualification. Plaintiffs would be substantially prejudiced by the loss of their chosen counsel at a critical juncture in litigation with imminent court-ordered discovery deadlines. The temporal proximity of this motion to the June 15, 2026, discovery deadline—combined with Defendants' alleged pattern of seeking adjournments of depositions and delaying compliance with this Court's discovery orders—raises concerns about the motion's purpose. The record reflects that defense counsel sought to adjourn the deposition of Plaintiff Currier claiming illness, that Defendant Curt Frasca was represented as being unavailable in Europe on his court-ordered deposition date when he was in fact present in Nyack the preceding day, that Defendants refused to produce Defendant Sabelle Frasca for deposition, and that Defendants objected to and caused the adjournment of the non-party deposition of Mark Ross.

Filing a disqualification motion—which Defendants knew would effect a stay of all proceedings—on the morning of the last scheduled deposition, and shortly before the court-ordered discovery deadline, is a circumstance this Court cannot overlook. The Court therefore finds, in the exercise of its discretion, that even if Mr. Honan were deemed a necessary witness under Rule 3.7, the balance of equities strongly favors permitting his continued representation.

IV. Disqualification of FNM Is Not Warranted

Defendants also seek disqualification of the entire FNM firm. This branch of the motion is denied on an additional and independent ground: Defendants have offered no argument, analysis, or authority in support of firm-wide disqualification beyond their general argument concerning Mr. Honan individually. Rule 3.7(b) provides that a lawyer may not act as advocate in a matter where another lawyer in the firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client. Even crediting Defendants' (unsupported) position that Mr. Honan is a necessary witness, Defendants have identified no basis to conclude that his testimony would be prejudicial to Plaintiffs—the required showing under Rule 3.7(b). See Advanced Visual Concepts, Ltd. v Saffron Properties, LLC, 51 Misc 3d 50 [Sup. Ct. App. Term 2d Dept 2016] (affirming denial of firm disqualification where attorney's testimony would not prejudice client and no conflict of interest was identified). The motion to disqualify FNM is denied in its entirety.

V. The Requested Stay Is Denied

Defendants' request for a stay of all proceedings pending determination of this motion is denied as moot. Additionally, even had the motion raised a closer question on the merits, the Court would not grant a stay in the circumstances presented here because a stay would further prejudice Plaintiffs' ability to complete discovery. All parties are directed to comply with all existing discovery orders. The Court will entertain an application by Plaintiffs for sanctions or preclusion if Defendants continue to obstruct the discovery process.

CONCLUSION

For all of the foregoing reasons, it is hereby:

ORDERED, that Defendants' motion to disqualify Stephen M. Honan, Esq. and the law firm Feerick Nugent MacCartney PLLC from representing Plaintiffs in this action is DENIED in its entirety; and it is further

ORDERED, that Defendants' request for a stay of proceedings is DENIED; and it is further

ORDERED, that the parties shall comply with all existing discovery orders of this Court; and it is further

ORDERED, that the Clerk of Rockland County shall enter this Decision and Order.

This constitutes the Decision and Order of this Court as to Motion Seq. No. 1.

FOOTNOTES

1.   The transcript referenced (hereinafter Tr.) is the oral argument of Stephen M. Nonan, Esq. on behalf of Plaintiff (Ferrick, Nugent, McCartney, Esq.) and Mandy T. Nguyen, Esq. on behalf of Defendants/Third-Party Plaintiffs Sabelle and Curt Frasca as to Defendants/Third-Party Plaintiff's Order to Show Cause.

John P. Collins, Jr., J.