Security Pac. Natl. Bank v Evans

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Security Pac. Natl. Bank v Evans 2013 NY Slip Op 31676(U) July 19, 2013 Supreme Court, New York County Docket Number: 22899/1992 Judge: Shlomo S. Hagler Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: Hon. Shlomo S. Haaler PART: 17 Justice SECURITY PACIFIC NATIONAL BANK, . . . . . . . . Plaintiff,F ....... --- 1L E D - against - Jut 2 4 2013 TRACIE EVANS, et al, INDEX NO.: 022899~ 992 YOTION SEQ. NO.: 015 IbEClSlON and ORDER r Motion by Defendant Tracie Evans for a protective order, pursuant to CPLR 9 3103(a), striking, modifying or limiting plaintiffs document request dated August 1, 201 1. Papers Numbered Defendant Evans Notice of Motion with Affirmation of Defendant s Counsel David Worth, Esq., in Support of the Motion, Exhibits 1 & 2 and Affirmation of Good Faith with 3 Exhibits Plaintiffs Notice of Cross-Motion for Preclusion and Disqualification of Defendant s Attorney with Affirmation of Plaintiffs Counsel William M. Rifkin, Esq., & Exhibits 1 through 14 Defendant s Reply Affirmation of David Worth, Esq., in Further Support of Defendant s Motion for a Protective Order and in Opposition to Plaintiffs Cross-Motion with Exhibits 1 through 3 ............................................................................................. Plaintiffs Reply Affirmation of William M. Rifkin, Esq., in Further Support of Plaintiffs Cross-Motion and in Opposition to Defendant s Motion for a Protective Order ....................................... Defendant s Sur-Reply with Affirmation of David Worth, Esq., and Affidavit of Tracie Evans ......... Transcript of Oral Argument of February 25, 2013 ...................................... Cross-Motion: 0 No dyes 1 2 3 4 5 6 Number of Cross-Motions: 1 Cross-Motion by Plaintiff for Preclusion and Disqualification of Defendant s Attorney . Upon the foregoing papers, it is hereby ordered that Defendant s Motion and Plaintiffs Cross-Motion are is both granted to the extent set forth in the attached separate written Decision and Order, and the branch of Plaintiffs Cross-Motionseeking disqualification of Defendant sattorney is denied. sl i i A Dated: July 19, 2013 New York, New York Check one: 0 Final Disposition Motion is: 0 Granted 0 Denied Cross -Motion is: 0 Granted 0 Denied Check if Appropriate: SETTLE ORDER 0 DO NOT POST a Hon. Shlomo S. Hagler, J.S.C. 6dNon-Final Disposition Granted in Part 0 Other &Granted in Part 0 Other 0 SUBMIT ORDER 0 REFERENCE d [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 17 ..................................................................... X SECURITY PACIFIC NATIONAL BANK, Index No. 22899/92 Plaintiff, -against- DECISION and ORDER TRACIE EVANS, et al, Defendants: . -I-. Motion Sequence No.: 015 . A I 2013 26 In this protracted foreclosure iduon, defendant Track Evans ( Evans or NE\NYORU defendant ) moves, under motion ~~~~~~~a <1 . . protective order striking -r* 6 and/or modifying/limiting the document request of plaintiff Security National Bank ( SPN Bank or plaintiff 7, dated August 1, 201 1, pursuant to CPLR 6 3 103(a). Plaintiff cross- moves, under the same motion sequence number, (1) pursuant to CPLR § 3 I26 to preclude or limit defendant s evidence or in the alternative, to dismiss defendant s claims with prejudice for failure to comply with discovery, and (2) to disqualifL David Worth, Esq. ( Worth ) from continuing in his role as counsel for defendant Evans, in accordance with Rule 3.7 of the New York Rules of Professional Conduct ( the advocate-witness rule ) on the grounds that Worth will be required to testifL about substantive issues in the upcoming litigation. Factual Backmound At oral argument, this Court resolved the issues regarding discovery by granting both motions to the extent of requiring the defendants to produce the documents as set forth within 30 days and, if they fail to do so, allowing the parties to move for appropriate relief (Transcript of Oral Argument, dated February 25, 2013, at p. 15, lines 5-9). The sole [* 3] remaining issue on this motion and cross-motion is the disqualification of Worth as attorney for Evans. At issue in the underlying action is whether or not plaintiff breached an implied warranty to negotiate in good faith. Plaintiff claims that Worth, who negotiated all the agreements between CitiMortgage Inc. ( CMI ) and defendant Evans, will be required to testify as to those negotiations. (Affirmation of Plaintiffs Counsel William M. Rifiin, Esq. in Support of Plaintiffs Cross-Motion r Rifkin Aff. In Support ], at 7 27.) Specifically, plaintiff alleges that Worth has knowledge of three particular areas of importance: (1) that Worth negotiated the Settlement Agreement with Andrew M. Roth, Esq. [ Roth ], the attorney for CMI at the time, (2) that Worth drafted a letter for CMI to sign that would resolve Evans credit issues, and (3) that Worth informed Roth on March 30, 2007 that all the credit issues were resolved and the closing would occur on or about April 13,2007. (Id. at 7 28.) If Worth is required to testify, he will be unable to continue in his capacity as counsel for the defense under the advocate-witness rule. Worth avers that his testimony is unnecessary and, therefore, he should not be disqualified. (Affirmation of David Worth in Support of Defendant s Sur-Reply, at 7 10.) Discussion Disqualification [of counsel] is a matter which rests within the sound discretion of the trial court. (Ferolito v Vultaggio, 99 AD3d 19, 27 [lst Dept 20121 citing Harris v Sculco, 86 AD3d 481 [lst Dept 20111.) Motions to disqualify opposing counsel are generally disfavored since such motions are often made for tactical reasons, may result in unnecessary delay, and interfere with a party s right to choose his or her own counsel and, 1. The sur-reply by Worth and Evans was authorized by the court. -2- [* 4] therefore, require a high standard of proof for those seeking disqualification. (Cohen v Acorn Intl. Ltd., 921 F Supp 1062, 1063-64 [SDNY 19951 [citations omitted].) More importantly, to trigger the advocate-witness rule the movant must show that the attorney s testimony is necessary and that the same information cannot be gleaned from another source. (See S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437 [ 19871.) In S & S Hotel Ventures, the Court of Appeals unanimously reversed the Supreme Court s decision and the subsequent Appellate Division, First Department s affirmance, which disqualified plaintiffs attorney who participated in negotiations and communications with defendant s counsel regarding a loan agreement and the resulting default. The Court of Appeals found that the attorney should not be disqualified because his testimony was not necessary [emphasis in original] (id. at 445-446.) The Court of Appeals also noted that, while the New York Code of Professional Responsibility s Disciplinary Rules (the predecessor to the current New York Rules of Professional Conduct) are to be considered, they are not to be applied mechanically when disqualification is raised in litigation; instead the court should take into consideration all relevant circumstances and has discretion in at applying these disciplinary rules or codes (id. 443-445). In this case, Evans has submitted an affidavit stating explicitly that not only does she have personal knowledge of all the areas that the plaintiff claims Worth needs to testify about, but that all actions Worth performed were done at her request or in her presence. (Affidavit of Defendant Tracie Evans in Support of Defendant s Sur-Reply, 7 3-7.) Since Evans is clearly able to provide all the information the plaintiff claims they will require, Worth s testimony is not necessary. -3 - [* 5] Plaintiff has failed to meet the burden of proof required to authorize disqualification under the advocate-witness rule and plaintiffs motion to disqualify Worth as counsel for defendant Evans is, therefore, denied. Conclusion Accordingly, it is hereby ORDERED that defendant Tracie Evans motion and Plaintiffs cross-motion are both granted to the extent of requiring the defendants to produce the documents as set forth within 30 days and allowing the parties to move for appropriate relief if defendants fail to do so; and it is further ORDERED, that this Court denies that branch of the motion of plaintiff Security Pacific National Bank to disqualify David Worth, Esq., from continuing as counsel for defendant Tracie Evans. The foregoing constitutes the decision and order of this Court. The clerk of the court is hereby directed to enter this decision and order. Dated: July 19, 201 3 New York, New York I 1 - H o a Shlomo S. Hagler, J.S.C. -4-

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