DAVIN v. JMAM LLC

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Supreme Court, Appellate Division, First Department, New York.

Donna DAVIN, Plaintiff-Respondent, v. JMAM, LLC, doing business as Joan Rivers Worldwide Enterprises, Defendant-Appellant.

Decided: March 28, 2006

SAXE, J.P., NARDELLI, SWEENY, McGUIRE, MALONE, JJ. Torys LLP, New York (Lauren Reiter Brody of counsel), for appellant. Storch Amini & Munves, P.C., New York (Russell Bogart of counsel), for respondent.

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered October 28, 2005, which, to the extent appealed from, denied defendant's motion to disqualify plaintiff's law firm and its motion for summary judgment dismissing the complaint, and granted, in part, plaintiff's cross motion to the extent of compelling certain discovery, unanimously affirmed, with costs.

 Disqualification of plaintiff's law firm for violation of the advocate-witness rule (DR 5-102 [22 NYCRR § 1200.21(a) ] ) was properly denied in the absence of a showing that the testimony of plaintiff's attorneys would be necessary (see 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 [1987];  O'Donnell, Fox & Gartner, P.C. v. R-2000 Corp., 198 A.D.2d 154, 155, 604 N.Y.S.2d 67 [1993] ).   Moreover, even if testimony from some of plaintiff's attorneys were necessary, disqualification of the entire law firm would not therefore be warranted (see Talvy v. Am. Red Cross, 205 A.D.2d 143, 152, 618 N.Y.S.2d 25 [1994], affd. 87 N.Y.2d 826, 637 N.Y.S.2d 687, 661 N.E.2d 159 [1995] ).

 Inasmuch as a triable factual issue is raised as to whether defendant's purported non-discriminatory ground for plaintiff's dismissal, i.e., unsatisfactory job performance, was a pretext for impermissible discrimination based on gender, summary judgment dismissing the complaint was properly denied.   We note in this connection, inter alia, evidence to the effect that plaintiff was dismissed while on maternity leave immediately following two years of employment in which she received a raise, bonuses and evidently satisfactory job performance reviews, and evidence of comments made by her superiors critical of the length of her maternity leave (cf. Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004] ).

Under the particular circumstances presented, the authorization of additional discovery constituted a proper exercise of the court's broad discretion in the supervision of pre-trial disclosure (see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 1 A.D.3d 223, 767 N.Y.S.2d 228 [2003] ).

We have considered defendant's remaining arguments and find them unavailing.