Harris v Sculco

Harris v Sculco 2011 NY Slip Op 05983 Decided on July 21, 2011 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 July 21, 2011
Andrias, J.P., Sweeny, Moskowitz, Renwick, Richter, JJ.
5253N 111955/08

[*1]Betsy Harris, Plaintiff-Respondent,

v

Thomas Sculco, M.D., et al., Defendants-Appellants. John Does 1-10, Defendants.



 
Peltz & Walker, New York (Bhalinder L. Rikhye of counsel),
for appellants.
The Law Office of Tamara M. Harris, PLLC, New York
(Tamara M. Harris of counsel), for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered September 17, 2010, which denied defendants' motion to disqualify plaintiff's attorney, unanimously affirmed, without costs.

Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.01) generally prohibits an attorney from acting as an advocate before a tribunal where it is likely that the attorney will 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 where the attorney knows he or she is likely to be a witness on a significant issue of fact on the client's behalf, unless the testimony relates to enumerated subjects, not here relevant (see Goldberger v Eisner, 21 AD3d 401 [2005]; Broadwhite Assoc. v Truong, 237 AD2d 162, [1997]).

In determining whether to disqualify an attorney on the ground that he or she will likely be a witness, the court is guided, but not bound by, the standards set forth in Rule 3.7 (see S & S Hotel Ventures LTD. Partnership v 777 S.H. Corp., 69 NY2d 437, 445 [1987]), and whether to disqualify an attorney rests in the sound discretion of the Court (see Gulino v Gulino, 35 AD3d 812 [2006]). While discovery may establish the substance and necessity of plaintiff's attorney's testimony so as to permit disqualification under Rule 3.7, the court exercised its discretion in denying defendants' motion on the ground that it was premature at this early stage of the proceedings (see Kirshon, Shron, Cornell & Teitelbaum v Savarese, 182 AD2d 911 [1992]).

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

ENTERED: JULY 21, 2009 [*2]

CLERK