| Blanche, Verte & Blanche, Ltd. v Joseph Mauro & Sons |
| 2012 NY Slip Op 00318 [91 AD3d 693] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Blanche, Verte & Blanche, Ltd., Respondent, v JosephMauro & Sons, Appellant, and Shore Drug, Inc., Respondent. |
—[*1] Neil H. Greenberg & Associates, P.C., Westbury, N.Y. (Justin M. Reilly of counsel), forplaintiff-respondent.
In an action to recover damages for negligence and breach of contract, the defendant JosephMauro & Sons appeals from an order of the Supreme Court, Suffolk County (Jones, Jr., J.), datedSeptember 1, 2010, which denied its motion for summary judgment dismissing the complaint andall cross claims insofar as asserted against it and, in effect, in the alternative, to disqualify theplaintiff's attorney.
Ordered that the order is affirmed, with costs to the plaintiff-respondent.
The Supreme Court properly denied that branch of the appellant's motion which was forsummary judgment dismissing the complaint and all cross claims insofar as asserted against it asviolative of the rule against successive motions for summary judgment (see Sutter v Wakefern Food Corp., 69AD3d 844, 845 [2010]; KimberMfg., Inc. v Hanzus, 56 AD3d 615, 616 [2008]; Crane v JAB Realty, LLC, 48 AD3d 504 [2008]; Williams v City of White Plains, 6AD3d 609 [2004]).
The Supreme Court also properly denied that branch of the appellant's motion which was, ineffect, to disqualify the plaintiff's attorney on the ground that he was likely to be called as awitness on a significant issue of fact (see Rules of Professional Conduct [22 NYCRR1200.0] rule 3.7). Since the appellant "failed to offer any proof as to the content or subject matterof the testimony that might be elicited from the [plaintiff's] attorney," nor is it "apparent from therecord as to why it is necessary to call him as a witness," the appellant "failed to demonstrate thatthe testimony of the [plaintiff's] attorney was necessary" (Bentvena v Edelman, 47 AD3d 651, 651-652 [2008]; see Hudson Val. Mar., Inc. v Town ofCortlandt, 54 AD3d 999, 1000 [2008]; Broadwhite Assoc. v Truong, 237 AD2d162 [1997]; cf. Brunette v Gianfelice, 171 AD2d 719 [1991]; Gasoline Expwy v SunOil Co. of Pa., 64 AD2d 647, 647-648 [1978], affd 47 NY2d 847 [1979]). Skelos,J.P., Hall, Austin and Miller, JJ., concur. [Prior Case History: 2010 NY Slip Op32402(U).]