Elenson v Freeman

[*1] Elenson v Freeman 2012 NY Slip Op 50321(U) Decided on January 5, 2012 Supreme Court, Nassau County Iannacci, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 5, 2012
Supreme Court, Nassau County

Brian Elenson A/B/A 2MUCHSTUFF4ME, Plaintiff(s),

against

Phyllis Freeman, Paul Freeman, and Michael Howard, Defendant(s).



9938/11



PLAINTIFF'S ATTORNEY

GOLD, STEWART & BENES, LLP

1854 BELLMORE AVENUE

BELLMORE, NY 11710

516-512-6333

FAX 516-512-6334

DEFENDANT'S ATTORNEY

MICHAEL HOWARD, ESQ.

TWO ARON DRIVE

WOODBURY, NY 11797

516-496-3156

FAX 516-921-4853

Angela G. Iannacci, J.



The motion by the plaintiff for an order disqualifying the defendant, Michael Howard, from representing the other defendants in this case, is determined as follows:

This matter arises from a contract entered into between the plaintiff and the defendants, Phyllis Freeman and Paul Freeman. Pursuant to the contract, the plaintiff was to conduct a tag sale for the Freemans on July 3 and 4, 2011, and would keep 30% of the proceeds from the sale as his fee. The complaint alleges that Howard [*2]contacted the plaintiff and identified himself as the Freemans' son-in-law. Ultimately, Howard allegedly told the plaintiff that the sale was canceled. The plaintiff commenced the present action to recover under the contract and included a claim of tortious interference with a contract against Howard. Now, the plaintiff has brought this motion to disqualify Howard as counsel for the Freemans based upon the attorney-advocate rule claiming that Howard is a necessary witness in the case.

A party's right to be represented by counsel of their choosing is a valued right which should not be abridged absent a clear showing that disqualification is necessary (see Friia v Palumbo, 89 AD3d 896 [2d Dept. 2011]; Midwood Chayim Aruchim Dialysis Assocs, Inc. v Brooklyn Dialysis, LLC., 82 AD3d 1177 [2d Dept. 2011]; Falk v Gallo, 73 AD3d 685 [2d Dept. 2010]). Therefore, the party seeking disqualification bears a heavy burden (see Campbell v McKeon, 75 AD3d 479 [2d Dept. 2010]; Falk, supra). Further, the ultimate determination rests in the sound discretion of the trial court, who must weigh the competing interests in applying the Rules of Professional Conduct (see Midwood, supra; Falk, supra).

Rule 3.7 of the Rules of Professional conduct states, in pertinent part, as follows: (a) A lawyer shall not act as an advocate before a tribunal in a matter inwhich the lawyer is likely to be a witness on a significant issue of factunless:

* * * (3) disqualification of the lawyer would work substantial hardship on theclient

Here, initially, the plaintiff has failed to meet his heavy burden to demonstrate that disqualification is warranted. The plaintiff's reliance upon Falk is misplaced. In Falk, the attorney to be disqualified was not a party to the case and his testimony was obviously necessary to determine the terms of an oral contract, whereas here, Howard is a named party and had no involvement in negotiating the terms of the written contract. Further, it appears that disqualifying Howard would work a substantial hardship upon the Freemans (see Deans v Aranbayev, 28 Misc 3d 1220(A) [Sup. Ct., Queens Cnty, Markey, J.; 2010]. Finally, and at the very least, a determination of disqualification would be premature at this early stage of the proceedings (see Harris v Sculco, 86 AD3d 481 [1st Dept. 2011]; Spinner v County of Nassau, 82 AD3d 870 [2d Dept. 2011]).

Accordingly, the motion is denied, without prejudice to renew at the conclusion of discovery.

Counsel for the parties are directed to appear for a preliminary conference on February 9, 2012, at 9:30 a.m. in the Preliminary Conference Part of this court.

This constitutes the decision and order of the court.

Dated: January 5, 2012Angela G. Iannacci, J.S.C.