Wirth v Steven R. Krawitz, P.C.

Wirth v Steven R. Krawitz, P.C. 2010 NY Slip Op 09184 [79 AD3d 538] December 14, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Pamela Wirth et al., Appellants,
v
Steven R. Krawitz, P.C., et al., Respondents. (And a Third-Party Action.)

—[*1] Greenberg & Massarelli, LLP, Purchase (William G. Greenberg of counsel), for appellants.

Malito & Adolfsen, P.C., New York (John H. Somoza of counsel), for respondents.

Order, Supreme Court, New York County (Richard F. Braun, J.), entered July 12, 2010, which, to the extent appealed from as limited by the briefs, granted defendants' motion to disqualify third-party defendants as counsel for plaintiffs, unanimously affirmed, without costs.

Defendants met their burden of demonstrating that William Greenberg's testimony will be necessary to their third-party action (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443 [1987]) and that Greenberg's dual role of advocate and witness will create the appearance of representing conflicting interests (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7 [b]; see generally Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344 [2005]). Concur—Tom, J.P., Andrias, Saxe, Freedman and Manzanet-Daniels, JJ. [Prior Case History: 2010 NY Slip Op 31832(U).]