| Hudson Val. Mar., Inc. v Town of Cortlandt |
| 2008 NY Slip Op 07213 [54 AD3d 999] |
| September 30, 2008 |
| Appellate Division, Second Department |
| Hudson Valley Marine, Inc., Respondent, v Town ofCortlandt et al., Appellants. |
—[*1] Frooks & Frooks, Mohegan Lake, N.Y. (George P. Frooks of counsel), forrespondent.
In an action, inter alia, to recover damages for malicious prosecution, the defendants appeal,as limited by their brief, from so much of an order of the Supreme Court, Westchester County (O.Bellantoni, J.), entered April 23, 2007, as denied their motion to disqualify the plaintiff's counsel.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff owns and operates a marina on the Hudson River adjacent to Kings Ferry Roadin the Town of Cortlandt. On April 19, 2000, the State of New York Department ofEnvironmental Conservation charged the plaintiff with violating the Environmental ConservationLaw by dumping fill into the Hudson River on that day without a permit. The defendant BarbaraMiller, the Deputy Director of Code Enforcement for the defendant Town of Cortlandt, issued a"stop work" order the same day and, a few days later, issued appearance tickets to the plaintiffregarding the alleged dumping. In May 2000, the plaintiff pleaded guilty to the EnvironmentalConservation Law charge, and on June 30, 2000, was sentenced to a conditional discharge. TheTown charges which were the subject of the appearance tickets were eventually dismissed.[*2]
The plaintiff commenced this action, alleging, inter alia,that the Town's issuance of, among other things, the stop-work order, and the Town's prosecutionof the charges that were ultimately dismissed, caused the plaintiff to sustain damages. Followingdepositions of the plaintiff's principals and their son, nonparty Steven Winkelmann, it becameapparent that certain advice allegedly given the plaintiff by its attorney with respect to thestop-work order, as well as certain communications between the attorney and nonparty StevenWinkelmann, might be material to the issue of the plaintiff's damages. In prior appeals in thiscase, we held that the plaintiff had waived the attorney-client privilege with respect to thecommunications between the plaintiff's principals and its attorney, and that the attorney could bedeposed (see Hudson Val. Mar., Inc. vTown of Cortlandt, 30 AD3d 378 [2006]). We also held that there was no attorney-clientprivilege with respect to these matters in the communications between the attorney and nonpartySteven Winkelmann (see Hudson Val.Mar., Inc. v Town of Cortlandt, 30 AD3d 377 [2006]), and that Winkelmann could befurther deposed regarding those communications. After the attorney was deposed, the defendantsmoved to disqualify him on the ground that his testimony was necessary, inter alia, on the issueof whether the plaintiff's alleged damages were the result of the defendants' actions or, instead, ofthe attorney's advice. In the order appealed from, the Supreme Court, among other things, deniedthe defendants' motion. We affirm the order insofar as appealed from.
A party's entitlement to be represented in ongoing litigation by counsel of its choice is avalued right (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437,440 [1987]; Haberman v City of Long Beach, 298 AD2d 497, 498-499 [2002];Broadwhite Assoc. v Truong, 237 AD2d 162, 162-163 [1997]). Nevertheless, an attorneymay be disqualified when, in the exercise of discretion, the court determines that the attorney'stestimony is necessary (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69NY2d at 445-446; Bentvena v Edelman,47 AD3d 651 [2008]; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802 [2007];cf. Code of Professional Responsibility DR 5-102 [22 NYCRR 1200.21]). The burden ofdemonstrating the necessity of the attorney's testimony is on the party seeking his or herdisqualification (see Bentvena vEdelman, 47 AD3d 651 [2008]). In determining whether the attorney's testimony isnecessary, the court must consider the relevance of the expected testimony and must "take[ ] intoaccount such factors as the significance of the matters, weight of the testimony, and availabilityof other evidence" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at446).
Here, the defendants did not meet their burden of demonstrating that the attorney's testimonywas necessary (see Goldstein v Held,52 AD3d 471 [2008]; Bentvenav Edelman, 47 AD3d 651 [2008]). Even assuming that the deposition testimony of thedefendants Miller and Conlon regarding expected compliance with a stop-work order did notrender the attorney's advice here superfluous, in the posture of this case, the persons whoreceived the advice may testify about it and other persons who communicated with the attorneyabout matters relevant to the case may offer evidence regarding the content of thosecommunications, thereby rendering the attorney's own testimony unnecessary. Consequently, theSupreme Court did not improvidently exercise its discretion in denying the defendants' motion todisqualify the plaintiff's counsel. Fisher, J.P., Dillon, McCarthy and Belen, JJ., concur.