This is a motion by plaintiff^[FN1] seeking an order disqualifying defendants' law firm. This action arises out of a dispute concerning whether plaintiff is entitled to a broker's commission on a ten million dollar ($10,000,000.00) sale of a parcel of commercial real estate.

According to plaintiff's allegations, in or about May of 2005, he and defendants reached an oral agreement by which plaintiff would use his best efforts to obtain a buyer for defendants' property. The agreement provided that, if plaintiff was successful, he would be entitled to ten percent (10%) of the sale price as his commission.

Plaintiff claims that he subsequently secured an interested buyer, the New York State Office of General Services. He contends that in January 2006, he met with defendants, told them of the results of his efforts, and presented them with four copies of a written brokerage agreement that essentially memorialized the terms previously reached orally between the parties. Plaintiff claims that defendant George A. Vogt, III ("Vogt") signed one copy of the contract in his presence; that Vogt then handed the document back to plaintiff; that plaintiff, in turn, signed it; and that Vogt then took back the original, retained the unexecuted copies and told plaintiff, "Everything looks good, but I just want to run it by Bill," referring to William J. Keniry, Esq., his attorney. Plaintiff claims that he never saw the documents again.

According to plaintiff, about thirty days after this event, he personally obtained a draft contract for the sale of the parcel from the buyer's counsel and delivered it to the office of Attorney Keniry. Plaintiff subsequently telephoned the law office to inquire about the status of the sale transaction, but his calls were not returned. From time to time, plaintiff would call Vogt to ask for updated information regarding such things as the closing date of the sale of the property. Vogt failed to inform plaintiff that the closing was to take place on December 28, 2006. Plaintiff learned about this after the fact.

When plaintiff ultimately learned that the sale had been consummated and that title had closed, he sent an invoice for his brokerage commission to Attorney Keniry. The latter responded with a terse letter stating that no commission was due. This litigation followed.

Plaintiff's complaint alleges causes of action sounding in breach of oral and written contract, unjust enrichment, money had and received, conversion and fraud. Plaintiff also seeks the imposition of a constructive trust. Defendants have answered with general denials and have alleged a number of affirmative defenses. Some discovery has taken place, but plaintiff has also moved for various forms of relief based upon claims that defendants have not complied with their disclosure obligations.

The crux of plaintiff's current application is that defendants' counsel may well possess information relevant, if not critical, to this case. Plaintiff seeks to depose Attorney Keniry in order to discover any non-privileged information that Attorney Keniry may have acquired as a participant in the real estate sale transaction. On account of the perceived likelihood that counsel may be called as a witness adverse to his clients, plaintiff seeks disqualification.

In opposing this application, Attorney Keniry affirms, among other things, that he has [*2]never met Crisafulli; that he has never spoken with him; and that neither he nor any member of his firm has conversed with Crisafulli regarding the alleged brokerage agreement between plaintiff and defendants. Attorney Keniry goes on to state that neither he nor any other members of his firm have ever "reviewed" any "potential brokerage agreements" between the parties. He also affirms that a search of the file "failed to result in discovery of the alleged agreement."

In reply, plaintiff asserts that counsel's position oversimplifies the issues in this case. Plaintiff points out that the draft sales contract he delivered from the purchasers to defendants' counsel contained language acknowledging that a broker was involved in the transaction, while the final contract stated that there had been no broker. Plaintiff points to this as evidence that Attorney Keniry may well have personal, non-privileged information relevant to the question of whether there were communications between himself and the buyer's attorney regarding the role played by Crisafulli in the sale. While defendants' papers focus on the question of whether the existence of a written contract can be proved, plaintiff points out that other causes of action pled in the complaint would be viable even in the absence of proof of a written agreement.

Plaintiff's concerns are not without basis. Questions of privilege aside, Attorney Keniry may well have information relevant to whether Vogt had indeed signed a brokerage contract.^[FN2] Beyond the written contract question, Attorney Keniry's testimony could shed light on what role, if any, plaintiff played in bringing together buyer and seller. Attorney Keniry's testimony could also be relevant to the question of whether he and the buyer's attorney had any discussions regarding brokers, commissions and the like. This information could lead to the discovery of relevant evidence on the issue of an oral agreement between the parties, the quasi-contractual causes of action or even on the fraud and conversion causes of action.

Whether to disqualify an attorney or law firm from representing a particular client is an issue that requires for its determination a careful balancing between avoiding a conflict of interest between attorney and client and preserving a party's right to be represented by counsel of choice (see e.g. S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 450 [1987]; Matter of Hof, 102 AD2d 591, 595 [2d Dept 1984], citing Greene v Greene, 47 NY2d 447, 453 [1979]). Motions for disqualification are not to be granted lightly (see Emerald Green Homeowners' Assn. v Aaron, 90 AD2d 628, 628 [3d Dept 1982]). Where such a motion is made as a tactic to delay or protract litigation or to harass an adversary, it must be denied (see Develop Don't Destroy Brooklyn v Empire State Dev. Corp., 31 AD3d 144, 153 [1st Dept 2006], citing Jamaica Pub. Serv. Co. v AIU Ins. Co., 92 NY2d 631, 638 [1998] and Solow v Grace & Co., 83 NY2d 303, 310 [1994]). On the other hand, where an attorney's testimony may be critical to a material issue and adverse to the interest of the client, the requested relief should be granted (see 22 NYCRR § 1200.21; Goldberger v Eisner, 21 AD3d 401 [2d Dept 2005]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608, 609 [2d Dept 2004]).

Here, both Crisafulli and Vogt have offered directly contradictory statements on key [*3]issues to be decided in this action, including whether a written brokerage agreement was executed by them and the role that plaintiff played in "putting together" the subject real estate sale. Each of them, with up to one million dollars at stake, clearly is an interested witness whose testimony would be subject to the closest scrutiny. The testimony of a third party, such as Attorney Keniry, may well prove dispositive. In addition, Attorney Keniry could be expected to provide relevant information as to any discussions with the buyer's attorney regarding the issue of brokerage commissions.

In short, it is apparent that Attorney Keniry, by his direct involvement in all stages of the real estate transaction at issue, is potentially a critical witness in this case. What is more, there is a good chance that the information he possesses and the testimony he may give will be prejudicial to his clients. As a result, the Court concludes that it would be inappropriate for him or his firm to continue to represent defendants in this action.

Accordingly, it is

ORDERED that plaintiff's application for disqualification of defendants' counsel is granted; and it is further

ORDERED that further proceedings in this matter are stayed for thirty (30) days from the date of this Decision and Order so as to allow defendants an opportunity to retain successor counsel; and it is further

ORDERED that plaintiff's application for relief relative to discovery issues is denied with leave to renew upon a showing that a good-faith effort to resolve those issues with defendants' successor counsel has been made and has not borne fruit.

This constitutes the Decision and Order of the Court. All papers including this Decision and Order are returned to plaintiffs' counsel. The signing of this Decision and Order shall not constitute entry or filing under CPLR Rule 2220. Counsel is not relieved from the applicable provisions of that Rule respecting filing, entry and Notice of Entry.

Dated: Albany, New York

June 5, 2008

RICHARD M. PLATKIN

A.J.S.C.