The following papers numbered 1 to 3 read on this motion:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1, 2

Opposing Affidavits (Affirmations)3

Reply Affidavits (Affirmations)

Affidavit (Affirmation)

Other Papers

Plaintiff-wife seeks an order disqualifying defendant-husband's attorneys, members of the law firm of Mallilo & Grossman on the ground that Anthony Mallilo, Esq. (hereinafter referred to as Counsel) is a necessary trial witness for the wife. The wife will "probably" call Counsel to testify regarding a conversation alleged to have occurred between counsel and the husband in which Counsel allegedly discouraged the wife from filing a loss of consortium claim in connection with husband's previously settled personal injury lawsuit. The husband opposes the wife's application.

The wife contends that she was prepared to go to trial on July 12, 2010, which was delayed due to the husband's retention of counsel. She further avers that she "... has no desire to prolong this action and the present motion is made solely in the interest of avoiding a potential conflict of interest, which would serve to further delay the proceedings.". Lastly, the wife avers that since the husband had the funds to retain private counsel, he will have the ability to hire alternative counsel.

The Husband's Contentions

The husband contends that "[a]t no time did the law office of Mallilo & Grossman consult with, meet with or discuss any claims with Mrs. Heather Phillip...". The husband avers that the wife's causes of action in the verified complaint in the within matrimonial action are contrary to a loss of consortium claim. For example, the wife's complaint states that from the beginning of the marriage until the present defendant [husband] on an almost daily basis would yell and scream at the plaintiff [wife] and call her fat, ugly, that she had a big belly, refer to her as a s[***] cleaner, because she took a babysitting job to support the family, a b[****], a whore, a butch, f[***] mother [****], jackass and a[**]hole.". He further contends that the wife's verified compliant states that the husband refused to have sex with the wife as of August 20, 2007, which is approximately two (2) years after he settled his personal injury law suit. The husband avers that the alleged conversation that occurred between the husband and Counsel are protected by the attorney client privilege. Also, it was conducted in preparation of litgation thereby constituting work product. Lastly, the husband contends that the husband's personal injury settlement and likewise a loss of consortium claim, is a separate asset and therefore, not subject to equitable distribution.

(1) the testimony relates solely to an uncontested issue;

(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.

(1) another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the

testimony may be prejudicial to the client;or

(2) the lawyer is precluded from doing so by Rule 1.7 or Rule 1.9.

(22 NYCRR 120.29 [Rule 3.7]).

Previously, New York State adhered to the Model Code of Professional Responsibility, which similarly provided that:

(B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client

(22 NYCRR 1200.21 [repealed 2009]).

The public policy underlying Rule 3.7 is straightforward in attempting to avoid conflicts of interest. "[W]hen a lawyer is called to testify against the client's interest the conflict is obvious" (People v. Berroa, 99 NY2d 134, 782 NE2d 1148, [NY, 2002]).

The predecessor to the Professional Conduct Rule 3.7, often referred to as the "advocate-witness rule" must not, however, be applied mechanically. The Court of Appeals observed in 1987 that the rule ". . . provide[s] guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance, should be disqualified during litigation" (S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 NY2d 437, 508 NE2d 647 [1987]). The court further explained that among the factors to be considered before disqualifying an attorney include " . . . 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." (Id.).

The choice of counsel is a valued right among litigants (Hudson Val. Mar., Inc. v. Town of Cortlandt, 54 AD3d 999, 865 NYS2d 122, [2 Dept., 2008]), enforcement of the advocate-witness rule "may be required only when it is likely that the testimony to be given by the witness is necessary" ( S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 NY2d 437, supra ). "A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other [*4]evidence " (Id.; see also, Wolfson v. Posner, 57 AD3d 979, 869 NYS2d 804, [2 Dept., 2008]; Falk v. Gallo, 73 AD3d 685, 901 NYS2d 99, [2 Dept., 2010]). The test for disqualification is whether the attorney's testimony is, within the meaning of Rule 3.7, "necessary" and "may be prejudicial to the client". It is possible to permit a lawyer to serve as both advocate and witness if it is clear before the event that the lawyer will not testify on an issue of fact that is "significant" or otherwise prejudicial to their client. This court is mindful that the Appellate Division, Second Department has held that "[a] party's right to be represented by an attorney of hisor her own choice " . . .I s a valued right which should not be abridged absent a clear showing that disqualification is warranted." (Zutler v. Drivershield Corp., 15 AD3d 397, 397, 790 NYS2d 485 [2 Dept., 2005]; see Wolfson v. Posner, 57 AD3d 979, 869 NYS2d 804 [2 Dept., 2008]; Goldstein v. Held, 52 AD3d 471, 859 NYS2d 707 [2 Dept., 2008]).

Burden of Proof

"The party seeking to disqualify a law firm or an attorney bears the burden of demonstrating the need for disqualification (see Gulino v. Gulino, 35 AD3d 812, 826 NYS2d 903)." (Goldman v. Goldman, 66 AD3d 641, 885 NYS2d 641 [2 Dept., 2009]). In this case, the wife, as the moving party, has the burden of showing that Rule 3.7 would be violated if the law firm of Mallilo & Grossman were to continue in their representation of defendant (see Luk Lamellen U. Kupplungsbau GmbH v. Lerner, 167 AD2d 451, 562 NYS2d 134, [2 Dept., 1990]).

In the case at bar, disqualification is not warranted because Counsel's testimony is not necessary to the adjudication of the underlying issues in this case, that is, the parties' divorce and child support, spousal support and equitable distribution. The wife contends on page three (3) of her affidavit in support that "ANTHONY MALLILO SHOULD BE DISQUALIFIED DUE TO THE PROBABILITY THAT HE WILL BE CALLED AS A WITNESS ON AN ISSUE ADVERSE TO HIS CLIENT"^[FN1]. This court notes that the wife states that she will "probably" call Counsel. Furthermore, the wife's contention that, although she did not have a formal retainer with Counsel, which this court recognizes is not a requirement for a disqualification, she concedes that she did not even have a conversation with Counsel. She contends that her husband's alleged conversation with his personal injury counsel as related to her was an indirect consultation with her.

Even assuming, arguendo, that such an argument is plausible, such testimony by Counsel would not be prejudicial to counsel's client. The husband was injured in 1999, his personal injury action was commenced in 1999 and settled in 2005; this divorce again was commenced in 2008. Clearly, such a decision to not bring a loss of consortium claim was not made in contemplation of this divorce litigation.

In New York a couple's economic decisions made during the marriage, that is, "before either party is anticipating the end of the marriage" and constrained to situations [*5]where "there is no fraud or concealment", shall be respected by the courts (see Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 909 NE2d 62, [2009]; see also Johnson v. Chapin, 12 NY3d 461, 909 NE2d 66, [2009]). "Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end. " (Id.). In the case at bar, the disqualification is sought based upon an alleged advice given approximately nine (9) years prior to that cause of action for divorce by a lawyer to his own client and then relayed to another. The wife could have consulted her own counsel. Clearly, this was an economic decision not made in contemplation of divorce.

The Domestic Relations Law clearly states that a personal injury settlement is separate property (see DRL 236(B) (1) (d)). The statute provides "[t]he term separate property shall mean: (2) compensation for personal injuries". It has further been determined that both the economic and non-economic portions of personal injury compensation are separate property (Howe v. Howe, 68 AD3d 38, 886 NYS2d 722, [2 Dept., 2009]).

A loss of consortium cause of action must be plead prior to settlement of the underlying claim. "Where there is a cause of action brought by the injured husband pending, the wife's consortium action, if not time-barred, should be joined with her husband's claim. Where, however, the husband's cause of action has been terminated either by judgment, settlement or otherwise, that should operate to bar the wife's cause of action for consortium." (Buckley v. National Freight, 90 NY2d 210, 681 NE2d 1287, [1997], citing Millington v. Southeastern Elevator Co., 22 NY2d 498, 239 NE2d 897, [1968]). "[I]f the impaired spouse has begun an action for bodily harm, and then settled it and given a release, and the deprived spouse has stood by throughout with full knowledge of the conduct, it has been possible to join in the action at any time before it has become barred by the release, and the deprived spouse cannot now be permitted to maintain a separate action." (Id.). Here, wife had over five years in which to file a loss of consortium claim, but failed to do so. Even if this court where to reach the question of the validity of a loss of consortium claim on the merits in this matrimonial action, it must be noted that the wife's verified compliant states that the parties ceased having sexual relations on or about August 20, 2007; the personal injury action settled in 2005 and the claim would constitute separate property of the wife not subject to equitable distribution (see Domestic Relations Law § 236[B][1][d][2]; see also Richmond v. Richmond, 144 AD2d 549, 534 NYS2d 413 [2 Dept.,1988]; Miceli v. Miceli, —- NYS2d ——, 2010 WL 4792669 [2 Dept.,2010]).

It is noted that the husband states that Counsel was his attorney for the personal injury action. In the case at bar, Jawan Finley an associate of the law firm of Mallilo & Grossman represents the husband. Even if Counsel were disqualified, the Rules permit a law firm to continue representation of a client even if one attorney in the [*6]firm is required to testify (see Kaplan v. Maytex Mills, Inc., 187 AD2d 565, 590 NYS2d 136, [2 Dept., 1992]; see also Talvy v. American Red Cross in Greater New York, 205 AD2d 143, 618 NYS2d 25 [1 Dept.,1994]; Davin v. JMAM, LLC, 27 AD3d 371, 812 NYS2d 494 [1 Dept.,2006] ["Disqualification of plaintiff's law firm for violation of the advocate-witness rule (DR 5-102 [22 NYCRR § 1200.21(a)]) was properly denied in the absence of a showing that the testimony of plaintiff's attorneys would be necessary [citations omitted]. Moreover, even if testimony from some of plaintiff's attorneys were necessary, disqualification of the entire law firm would not therefore be warranted[ citations omitted]").

Accordingly, the wife's conclusory assertion that there is a conflict based upon her indirect consultation and that she will "probably" call Counsel is simply not a basis to deprive the husband of counsel of his choosing (see Hall Dickler Kent Goldstein & Wood, LLP v. McCormick, 36 AD3d 758, 830 NYS2d 195 [2 Dept.,2007] ["The defendant's conclusory assertions and speculation as to the existence of a conflict of interest were insufficient to meet her burden of demonstrating that the disqualification of counsel was warranted."]). Although the disqualification of an attorney is a matter which rests with the sound discretion of the trial court (see Boyd v. Trent, 287 AD2d 475, 476, 731 NYS2d 209), a party's entitlement to be represented in ongoing litigation by counsel of his own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted [citations omitted]" (Bentz v. Bentz, 37 AD3d 386, 831 NYS2d 423 [2 Dept.,2007]).

In the instant case, this court find no basis in the record which warrants the disqualification of the husband's counsel. His decision to retain the law firm of Mallilo & Grossman should not be abridged under the circumstances presented. Rather, it is apparent that the wife has used tactics to prevent this matter coming to a conclusion. She represented to this court that there was a settlement and then withdrew, as is her right prior to the execution of an agreement. Thereafter, the husband's separate assets were enjoined, denying him the ability to pay for his daily living expenses, let alone try to retain private counsel; and now on the eve of trial the motion to disqualify.^[FN2] This matter will come to an end. The trial on all economic issues is referred to JHO Harkavy pursuant to Article 29, of the Judiciary Law, and in accordance with the provisions of Part 122 of the Rules of the Chief Administrator of the Courts (22 NYCRR 122). Counsel shall appear on December 20, 2010, in Part 5G at 9:30 a.m. for the limited purpose of completing a referral order to the JHO, including counsels determination on whether the matter is "hear and determine" or "hear and report" and the selection of trial dates. [*7]

This shall constitute the decision and order of the Court.

E N T E R

JEFFREY S. SUNSHINE

J. S. C.