| Trimarco v Data Treasury Corp. |
| 2012 NY Slip Op 00360 [91 AD3d 756] |
| Jnury 17, 2012 |
| Appellate Division, Second Department |
| Michael Trimarco, Respondent, v Data TreasuryCorporation, Appellant. |
—[*1] Robert J. Del Col, Smithtown, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the defendant appeals froman order of the Supreme Court, Suffolk County (Jones, Jr., J.), dated December 2, 2010, whichgranted that branch of the plaintiff's motion which was to disqualify nonparties Richard B.Friedman and McKenna, Long & Aldridge, LLP, from representing the defendant in this action.
Ordered that the order is reversed, on the law and in the exercise of discretion, with costs,and that branch of the plaintiff's motion which was to disqualify nonparties Richard B. Friedmanand McKenna, Long & Aldridge, LLP, from representing the defendant in this action is denied.
The disqualification of an attorney is a matter that rests within the sound discretion of theSupreme Court (see Nationscredit Fin.Servs. Corp. v Turcios, 41 AD3d 802 [2007]). A party's entitlement to be represented bycounsel of his or her choice is a valued right which should not be abridged absent a clearshowing that disqualification is warranted (see Aryeh v Aryeh, 14 AD3d 634 [2005]). On a motion todisqualify an attorney, the burden of making such a showing is on the moving party (see S &S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; Nationscredit Fin. Servs. Corp. vTurcios, 41 AD3d 802 [2007]).
The advocate-witness rules contained in the Rules of Professional Conduct (see 22NYCRR 1200.0), provide guidance, but are not binding authority, for the courts in determiningwhether a party's attorney should be disqualified during litigation (see S & S Hotel VenturesLtd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]). Rule 3.7 of the Rules ofProfessional Conduct provides that, unless certain exceptions apply, "[a] lawyer shall not act asadvocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significantissue of fact" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [a]; see Falk v Gallo, 73 AD3d 685[2010]). In order to disqualify counsel, a party moving for disqualification must demonstrate that(1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) suchtestimony would be [*2]prejudicial to the opposing party (seeS & S Hotel Ventures Ltd. Partnership v 777 S. H., 69 NY2d at 446; Daniel Gale Assoc., Inc. v George, 8AD3d 608, 609 [2004]).
Here, the plaintiff failed to demonstrate that the disqualification of Richard B. Friedman andhis law firm, McKenna, Long & Aldridge, LLP, from representing the defendant in this actionwas warranted. There was no showing that Friedman's testimony was necessary, as there was noevidence that he had first-hand knowledge of material facts relevant to the case (cf. Falk v Gallo, 73 AD3d 685[2010]). Further, the plaintiff failed to demonstrate that Friedman's testimony would beprejudicial to the defendant. Accordingly, the Supreme Court improvidently exercised itsdiscretion in granting that branch of the plaintiff's motion which was to disqualify Friedman andMcKenna, Long & Aldridge, LLP, from representing the defendant in this action.
The plaintiff's remaining contentions are without merit. Dillon, J.P., Dickerson, Eng andLeventhal, JJ., concur.