Susan W McCallion, Plaintiff, v. New York Presbyterian Hospital, Defendant. (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25 were read on this motion to/for DISQUALIFY COUNSEL.

Upon the foregoing documents, Defendant New York Presbyterian Hospital ("NYPH") moves for an order disqualifying Kenneth F. McCallion, Esq. ("McCallion") and the law firm of McCallion & Associates from serving as counsel for Plaintiff, Susan W. McCallion ("Plaintiff") pursuant to Rule 3.7 of the New York Rules of Professional Conduct.

Plaintiff opposes the motion.

BACKGROUND

Plaintiff commenced the within medical malpractice action on June 13, 2023, alleging negligent IV placement and management during her admission at New York Presbyterian Hospital ("NYPH"), causing infiltration and later a MRSA infection. NYPH interposed an Answer on July 12, 2023.

While the action was initially commenced by James Burchetta, Esq. of Burchetta & Associates, on July 10, 2024, a Notice of Appearance was filed by McCallion, on behalf of the firm McCallion and Associates, LLP, as attorneys of record for Plaintiff. McCallion is the spouse of Plaintiff.

DISCUSSION

Under Rule 3.7(a) of the New York Rules of Professional Conduct, an attorney may not serve as advocate where he or she is "likely to be a witness on a significant issue of fact." New York courts emphasize that the movant bears the burden of demonstrating that counsel's testimony would be "strictly necessary" and prejudicial to the represented party (Lombardi v Lombardi, 164 AD3d 665 [2d Dept 2018]). Testimony that is merely relevant or potentially useful is insufficient (Singh v Singh, 244 AD3d 1129 [2d Dept 2025]).

In support of the motion, Defendant contends that under Rule 3.7(a), McCallion, and his law firm must be disqualified, since McCallion, was present at certain points during Plaintiff's medical treatment—including at hospital discharge—and is, therefore, likely to be a necessary witness. Defendant also contends that McCallion has crucial factual knowledge including Plaintiff's complaints, course of treatment, and condition at discharge, and, therefore, his testimony will be needed to address contested matters directly bearing on liability and damages. Defendant argues that the exceptions to Rule 3.7 are inapplicable since 1) the issues are contested; 2) the testimony involves substantive, disputed factual matters; 3) Plaintiff would not incur a hardship due to disqualification and 4) dual representation has not been authorized by the Court.

Upon review of the moving papers, the Court finds that Defendant has not met its burden under Rule 3.7(a) to demonstrate that McCallion's testimony is strictly necessary or prejudicial to Plaintiff, since McCallion's knowledge such as accompanying Plaintiff to appointments, participating in conversations with physicians, or having firsthand knowledge of her symptoms—is framed in terms of "likely," "upon information and belief." The Court notes that while McCallion confirms in his affirmation, that he picked up Plaintiff from NYPH on discharge, he denies participating in any medical discussions, denies firsthand medical knowledge, and denies involvement in follow-up visits other than transportation. It is well settled that disqualification is appropriate where the attorney's testimony is material and central to contested issues of fact (People v Ortiz, 26 NY3d 430 [2015]; Matter of Ehrlich v Wolf, 127 AD3d 613 [1st Dept 2015]).

Plaintiff's affirmation also denies Defendant's assertions. McCallion's factual involvement is limited to picking Plaintiff up from the hospital at discharge, an event for which multiple independent sources exist, rendering any testimony cumulative at best. Disqualification is unwarranted where counsel's testimony would be cumulative or where information can be obtained from other witnesses (Gamez v Lopez, 220 AD3d 844 [2d Dept 2023]); Doell v McCarthy, 261 AD2d 132 [1st Dept 1999]). Moreover, Defendant has also not identified specific testimony that McCallion would provide. The medical records, treating physicians, and Plaintiff herself remain primary sources concerning the condition, complaints, and events underlying the malpractice allegations.

Contrary to Defendant's contentions, Plaintiff, has also demonstrated, that disqualification would impose a substantial hardship. She affirms that due to health issues of her former counsel, Mr. Burchetta, she has been compelled to use McCallion because she has been unable to secure substitute counsel. The case law has consistently held that "[a] spouse who is a licensed attorney may serve as counsel of record for their spouse so long as the attorney is not a 'necessary witness,' consistent with the advocate-witness rule  ¹ (Weksler v Weksler, 81 AD3d 401 [1st Dept 2011]). Under these circumstances, and at this stage of litigation, the Court finds that disqualification would impose hardship within the meaning of Rule 3.7.

Finally, the Court notes that Defendant filed the requested relief more than a year after McCallion filed his Notice of Appearance, and substantial discovery had been conducted. Granting the requested relief at this juncture would be prejudicial and against the interest of judicial economy.

Based on the foregoing, it is hereby

ORDERED that Defendant's motion, seeking to disqualify Kenneth F. McCallion, Esq. and the law firm of McCallion & Associates, LLP, as counsel for Plaintiff, is denied without prejudice to renew prior to the filing of the Note of Issue; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order upon Defendant's counsel within fourteen (14) days of the date of entry, via certified mail, and shall thereafter file proof of such service with the Court; and it is further

ORDERED that the parties shall proceed with discovery in accordance with previously ordered deadlines, or as may be further directed by the Court.

This constitutes the Decision and Order of the Court.

DATE 8/25/2026

KATHY J. KING, J.S.C.

FOOTNOTES

1.   This rule provides that a lawyer generally may not serve as counsel and testify in the same case if they are likely to be a necessary witness, because this dual role can mislead the fact-finder or unfairly prejudice the opposing party. The primary rationale is to avoid the unseemly situation where an attorney must both testify on behalf of a client and argue for the credibility of their own testimony.

Kathy J. King, J.