| Wolfson v Posner |
| 2008 NY Slip Op 10613 [57 AD3d 979] |
| December 30, 2008 |
| Appellate Division, Second Department |
| William Wolfson, Respondent, v Martin L. Posner et al.,Appellants. |
—[*1] Yeskoo Hogan & Tamlyn, LLP, New York, N.Y. (Thomas T. Tamlyn, Jr., of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal from an order ofthe Supreme Court, Westchester County (Liebowitz, J.), entered February 7, 2008, which deniedtheir motion to disqualify Richard Yeskoo and the firm of Yeskoo, Hogan & Tamlyn, LLP, fromrepresenting the plaintiff.
Ordered that the order is affirmed, with costs.
In this action to recover damages for legal malpractice, the defendants moved to disqualifyRichard Yeskoo, and his law firm, Yeskoo, Hogan & Tamlyn, LLP, from representing theplaintiff on the basis that Yeskoo had knowledge of the underlying litigation from which theallegations of legal malpractice arose. The defendants, citing Code of Professional ResponsibilityDR 5-102 (22 NYCRR 1200.21), maintained that Yeskoo, and members of his firm, werenecessary witnesses for the plaintiff.
"Disqualification may be required only when it is likely that the testimony to be given by thewitness is necessary. Testimony may be relevant and even highly useful but still not strictlynecessary. A finding of necessity takes into account such factors as the significance of thematters, weight of the testimony, and availability of other evidence" (S & S Hotel VenturesLtd. Partnership v 777 S. H. Corp., 69 NY2d 437, [*2]445-446 [1987] [citations omitted]; see Hudson Val. Mar., Inc.v Town of Cortlandt, 54 AD3d 999, 1000 [2008]). "A party's entitlement to be represented inan ongoing litigation by counsel of his or her own choosing is a valued right which should not beabridged absent a clear showing—on which the party seeking disqualification carries theburden—that counsel's removal is warranted" (Goldstein v Held, 52 AD3d 471,471-472 [2008]).
The defendants failed to meet their burden. Accordingly, the Supreme Court providentlyexercised its discretion in denying their motion (see Bentvena v Edelman, 47 AD3d 651[2008]; Zutler v Drivershield Corp., 15 AD3d 397 [2005]; Arons v Charpentier, 8AD3d 595 [2004]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).
The defendants' remaining contention is without merit. Skelos, J.P., Santucci, McCarthy andDickerson, JJ., concur.