Maxon v Woods Oviatt Gilman LLP

Maxon v Woods Oviatt Gilman LLP 2007 NY Slip Op 08614 [45 AD3d 1376] November 9, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 16, 2008

Joseph P. Maxon, Appellant, v Woods Oviatt Gilman LLP et al., Respondents.

—[*1] Remington, Gifford, Williams & Colicchio, LLP, Rochester (Robert B. Koegel of counsel), for plaintiff-appellant.

Woods Oviatt Gilman LLP, Rochester (Donald W. O'Brien, Jr., of counsel), defendant-respondent pro se and for Anthony Cotroneo, defendant-respondent.

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered March 13, 2007 in a legal malpractice action. The order denied plaintiff's motion to disqualify defendant Woods Oviatt Gilman LLP from representing a nonparty witness at a subpoenaed deposition.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order denying his motion in this legal malpractice action seeking to disqualify defendant law firm from representing a nonparty witness at a subpoenaed deposition. We affirm for reasons stated in the decision at Supreme Court. We add only that plaintiff has standing to bring this motion (see Vegetable Kingdom, Inc. v Katzen, 653 F Supp 917, 923 n 4 [ND NY 1987]), and that the court properly determined under the circumstances of this case that the nonparty witness, who had an existing attorney-client relationship with defendant law firm, was entitled to counsel of his own choosing (see generally Solow v Grace & Co., 83 NY2d 303, 310 [1994]; United States v Occidental Chem. Corp., 606 F Supp 1470, 1474 [WD NY 1985]). Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.