| Matter of Advent Assoc., LLC v Vogt Family Inv. Partners,L.P. |
| 2008 NY Slip Op 09150 [56 AD3d 1023] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Advent Associates, LLC,Respondent, v Vogt Family Investment Partners, L.P., et al.,Appellants. |
—[*1] Flint & Granich, Albany (Christopher P. Flint of counsel), for respondent.
Stein, J. Appeal from an order of the Supreme Court (Platkin, J.), entered June 11, 2008 inAlbany County, which, among other things, granted plaintiff's motion to disqualify defendants'counsel.
Rino Crisafulli is the sole member of plaintiff. He alleges that he entered into a brokeragreement with defendant George Vogt III, acting on behalf of the other named defendants,which authorized Crisafulli to act as broker for the sale of certain real property owned bydefendants. Crisafulli further alleges that the agreement was reduced to writing and signed byhimself and Vogt. Defendants deny the existence of the agreement. According to plaintiff, heprocured a buyer for the property and, after learning that the sale had been completed, requestedpayment of a brokerage commission of $1 million pursuant to the alleged agreement. Defendants,through counsel, rejected plaintiff's request. Plaintiff then commenced this action setting forthcauses of action sounding in breach of contract, unjust enrichment, fraud and conversion.Plaintiff moved to disqualify defendants' counsel, William Keniry, on the basis that he was amaterial witness in the case. Supreme Court granted plaintiff's motion. Defendants now appealand we reverse.
The right to choose one's own counsel is a valued right (see S & S Hotel Ventures Ltd.Partnership v 777 S. H. Corp., 69 NY2d 437, 440, 443 [1987]). Thus, the restriction of thatright [*2]must be carefully scrutinized (see id. at 443;Plotkin v Interco Dev. Corp., 137 AD2d 671, 674 [1988]). However, a lawyer may notethically continue to represent a client where it becomes apparent that the lawyer "ought to becalled as a witness" (Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21(a)]; see DR 5-101 [a] [22 NYCRR 1200.20 (a)]; see also S & S Hotel Ventures Ltd.Partnership v 777 S. H. Corp., 69 NY2d at 444). In order to warrant disqualification, thetestimony sought from the lawyer witness must be necessary (see Bullard v Coulter, 246AD2d 705, 706 [1998]). "A finding of necessity takes into account such factors as thesignificance of the matters, weight of the testimony, and availability of other evidence" (S &S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 446 [citations omitted]).
Here, we find that plaintiff has not demonstrated that Keniry's testimony was unique to him,and, therefore, necessary, rather than merely relevant and potentially useful or valuable (seeid. at 445-446; Bullard v Coulter, 246 AD2d at 706; Burdett RadiologyConsultants v Samaritan Hosp., 158 AD2d 132, 135 [1990]). Therefore, Supreme Courterred in granting plaintiff's motion.
Cardona, P.J., Peters, Carpinello and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, with costs, and motion denied. [See 19 Misc 3d 1142(A), 2008 NYSlip Op 51146(U).]