Shah v Ortiz

Shah v Ortiz 2013 NY Slip Op 08546 Decided on December 24, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 24, 2013
Mazzarelli, J.P., Sweeny, Moskowitz, Freedman, Clark, JJ.
11409N 651500/11

[*1]Samar Shah, et al., Plaintiffs-Appellants,

v

Juan Ortiz, et al., Defendants-Respondents.




Law Offices of Edward Weissman, New York (Edward
Weissman of counsel), for appellants.
Cohen Law Group, P.C., New York (Brian S. Cohen of
counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2013, which denied plaintiffs' motion to disqualify Jeffrey P. Shapiro, Esq. from serving as defendants' co-counsel, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying plaintiffs' motion to disqualify defendants' co-counsel. Plaintiffs failed to meet their burden of showing that they had a prior attorney-client relationship with Mr. Shapiro which is fatal to a motion to disqualify under 22 NYCRR 1200.0 (Rules of Professional Conduct) Rule 1.7(b) (see Solow v Grace & Co., 83 NY2d 303, 308 [1994]; Campbell v McKeon, 75 AD3d 479 [1st Dept 2010]). Contrary to plaintiff's argument, defendants' counsel did not previously represent the plaintiffs in this action, rather, he represented defendant A-Data Technology of Latin America.

We also find that counsel's testimony in this action is unessential and would be cumulative. Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 AD3d at 481).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 24, 2013

DEPUTY CLERK