DANIEL GALE ASSOCIATES INC v. GEORGE

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

DANIEL GALE ASSOCIATES, INC., respondent, v. David GEORGE, et al., appellants.

Decided: June 28, 2004

HOWARD MILLER, J.P., GLORIA GOLDSTEIN, BARRY A. COZIER, and WILLIAM F. MASTRO, JJ. Ackerman, Levine, Cullen & Brickman, LLP, Great Neck, N.Y. (John M. Brickman and Andrew J. Luskin of counsel), for appellants. Farrell Fritz, P.C., Uniondale, N.Y. (James M. Wicks and Eric W. Penzer of counsel), for respondent.

In an action, inter alia, to recover a real estate broker's commission, the defendants appeal from an order of the Supreme Court, Nassau County (Parga, J.), dated July 8, 2003, which granted the plaintiff's motion to disqualify Leslie Levine and the law firm of Ackerman, Levine, Cullen & Brickman, LLP, from representing them and granted their cross motion to compel discovery to the extent of directing the plaintiff to provide the documents requested in items four and six of the defendants' December 4, 2002, notice for discovery and inspection, only for the period of September 1, 2000, through September 30, 2002.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the cross motion is granted to the extent of directing the plaintiff to provide the documents requested in items four and six of the defendants' December 4, 2002, notice for discovery and inspection, for the period of April 1, 1998, through March 31, 2000.

The Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to disqualify the defendants' attorney, Leslie Levine, and the law firm of Ackerman, Levine, Cullen & Brickman, LLP, pursuant to 22 NYCRR 1200.21.   The plaintiff failed to show that Levine's testimony was necessary to its case (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;  Ansonia Assocs. Ltd. Partnership v. Public Serv. Mut. Ins. Co., 277 A.D.2d 98, 99, 717 N.Y.S.2d 30;  Matter of Cowen & Co. v. Tecnoconsult Holdings, 234 A.D.2d 86, 650 N.Y.S.2d 222), or that, if called as a witness, his testimony would be prejudicial to his client (see 22 NYCRR 1200.21[d];  Ansonia Assocs. Ltd. Partnership v. Public Serv. Mut. Ins. Co., supra;  Matter of Cowen & Co. v. Tecnoconsult Holdings, supra ).

In addition, the Supreme Court erred in granting the defendants' cross motion to compel discovery by directing the plaintiff to produce documents responsive to items four and six of the defendants' December 4, 2002, notice for discovery and inspection, for the period September 2, 2000, through September 30, 2002.   We agree that the defendants are entitled to documents responsive to those items, because the defendants demonstrated that they are material and necessary to establish their affirmative defenses (see CPLR 3101;  Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430;  Cilone v. Willson Safety Prods., Inc., 229 A.D.2d 372, 373, 644 N.Y.S.2d 562;  Barrow v. Lawrence United Corp., 155 A.D.2d 806, 807, 548 N.Y.S.2d 82).   However, the relevant documents would be those generated before the plaintiff's alleged misrepresentation in March 2000.   Further, rather than direct the plaintiff to produce responsive documents for the period January 1, 1997, through March 2000, as the defendants request, the period April 1, 1998, through March 31, 2000, is more appropriate under the circumstances of this case.

Finally, the defendants contend that the Supreme Court failed to address their request that a sanction be imposed upon the plaintiff, and that they be awarded an attorney's fee.   However, the defendants failed to affirmatively move for that relief in the Supreme Court (see 22 NYCRR 130-1.1[d] ), and we decline to entertain that request at this juncture.

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