Losquadro v Carltun on the Park, Ltd. (2009 NY Slip Op 51756(U))

Losquadro v Carltun on the Park, Ltd.

2009 NY Slip Op 51756(U) [24 Misc 3d 1235(A)]

Decided on July 30, 2009

Supreme Court, Nassau County

Palmieri, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Defendant's motion to disqualify plaintiff's counsel from acting as such on the grounds that he will be a witness on behalf of plaintiff at trial, is granted. The action is stayed for a period of 30 days after service upon plaintiffs of a copy of this decision and order, in order to afford plaintiff the opportunity to engage new counsel. CPLR §321(c).

This is an action for personal injuries allegedly sustained by plaintiff while a guest at a private party being held at defendant's dining establishment.

Plaintiff, his present attorney and others, all guests at the event, were seated at a table together when plaintiff announced that "something stuck in his throat". Plaintiff alleges that he later learned that it was a plastic object which he says was contained in a mouthful of broccoli rabe and sausage which he ingested.

The event happened on January 3, 2008, this action was commenced in October 2008. The disclosure of counsel's involvement was made in plaintiff's response to defendant's combined demands dated January 21, 2009, which revealed that counsel was a witness. This motion ensued. The case is still in the discovery phase and has not been certified for placement on the trial calendar.

Defendant contends that the plaintiff's attorney should be disqualified from representing plaintiff because to do so would violate the New York Rules of Professional Conduct which became effective April 1, 2009, (the New Rules). The New Rules provide [*2]that:

A lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal. Rules of Professional Conduct 22 NYCRR §1200.29 [Rule 3.7] Lawyer as Witness.

This rule replaces previous rule DR5-102 (22 NYCRR §1200.21) Lawyers as Witnesses, which, while not identical also requires that the issue for which the attorney is called be significant and that disqualification should occur when the attorney ought to be called as a witness.

Initially, the Court finds that the New Rules apply to the instant motion in regulating the behavior of the attorneys involved, because the present disqualification issue arose after April 1, 2009. However, as there is no basis for concluding that the holdings of well established case law has been eviscerated by the adoption of the New Rules, resort to such case law may be made by the Court.

A party is entitled to representation of his own choosing, which should not be abridged absent a clear showing that disqualification is warranted. Feeley v Midas Props., 199 AD2d 238 (2d Dept. 1993). A court must "consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440 (1987). The party seeking the disqualification of the attorney bears the burden of the motion. Id. at 445.

The reasons for prohibiting an advocate to also act as a fact witness have previously been well state by Justice LaMarca in Smolenski v. TGI Friday's Inc., 15 Misc 3d 792, 794-795 (Sup. Ct. Nassau County 2007).

"The reasons for the prohibition against the lawyer as witness' provision of the Code are described in Simon's Code of Professional Responsibility Annotated (Professor Roy Simon, 2004 Edition at 579). As set forth, the rule avoids several potential effects on the trier of fact, which are inevitable when the advocate becomes a fact witness, including either discounting or bolstering the lawyer's testimony. The rule also avoids any potential conflict between the attorney and his client resulting from the lawyer's desire to place himself in the best light and the unseemly sight of arguing to a judge or jury about his own credibility . . .' . . . The prohibition prevents any unfairness arising from the lawyer presenting his case twice to the trier of fact, through his client and later through his own testimony. Finally the [*3]regulation avoids the evident practical awkwardness of bringing in a new advocate to question the lawyer-witness." (Richard L. v. Flora L., 6 Misc 3d 1014[A], 205 NY Slip Op 50044[U], [Sup Ct, Suffolk County 2005]).

As this motion for disqualification is based on the "Lawyer as Witness" rule, the moving party must demonstrate that plaintiff's counsel is likely to testify on a significant issue of fact and that none of the exceptions apply.

Here, plaintiff has declared that counsel intends to testify, counsel has not indicated that he will not testify and declines to be removed. Hence, whether he ought to testify or is likely to testify, may be accepted as established. The second prong is that the attorney is a witness on a "significant issue of fact". This requirement has also been satisfied as well. Counsel here was at the event with plaintiff and was a witness to the choking as well as events which preceded and followed the choking announcement. Counsel was in temporal and spatial proximity to plaintiff and to the other guests and potential witnesses and thereby in a position to make observations of all of their movements and interactions with each other and the food being served. As such, his testimony is relevant to significant factual issues. Kattas v. Sherman, 32 AD3d 496 (2d Dept. 2006).

Moreover, although plaintiff contends that counsel's testimony would be merely cumulative to what other witnesses may have observed, This factor is not one of the noted exceptions, and, in any event, it cannot be said that the testimony is cumulative without knowing the nature of the other testimony. A finding that an attorney's testimony would be cumulative and thus not necessary, simply allows an attorney to refrain from testifying while remaining as counsel. Here, plaintiff seeks to preserve counsel's representation while continuing to reserve his right to testify. Such an interpretation distorts the attorney advocate rule. To deny disqualification would constitute at the very least, a tacit endorsement of this attorney's right to testify and would thus present an improper appearance of impropriety at trial. Where there is potential for an improper appearance of impropriety, any doubt should be resolved in favor of disqualification. Bridges v. Alcan Const. Corp., 134 AD2d 316 (2d Dept. 1987).

With respect to the noted exceptions to the attorney advocate rule, plaintiff has failed to show that disqualification would work a substantial hardship. The case is still in a discovery and pretrial phase, there is no suggestion of any monetary damage to plaintiff as a result of a change and there has been no showing that counsel possesses any unique abilities, skills or knowledge, the loss of which would imperil plaintiff's chances of ultimate success. It cannot be said that the issues upon which counsel will testify are uncontested because the issue seems not to be that the event happened, but how it may have come to pass, and counsel's testimony might bear upon this issue. The remaining exceptions are not applicable here.