Nina Penina, Inc. v Njoku

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Nina Penina, Inc. v Njoku 2006 NY Slip Op 30839(U) October 4, 2006 Supreme Court, New York County Docket Number: 106051/04 Judge: Emily Jane Goodman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YO~K: IAS PART 17 --------------------------------r--------------------------------------)( 1 NINA PENJNA, JNC., Plaintiff, Index No. 106051 /04 ,.. ... .~ :.;.. -against1 1~· ! ............ . CHIEF 1.0. NJOKU, •• ••• i Defendant. . •, . ~ir-;,_~() ol~~ .,"' 'v(J6 -----------------------~------------------------------------------------)( I .. ·.~~~ ...~ EMILY JANE GOOD~AN, J.S.C.: I , Defendant Chiet 1.0. Njoku (Njoku) moves to disqualify Robert Teitelbaum (Teitelbaum) and his fjrm from representing plaintiff Nina Penina, Inc. (Nina I Penina) in this action and to compel him to comply with a Subpoena, dated i August 14, 2006. Plaintiff cross moves to vacate the Subpoena. The facts of this case were previously iiscussed in a Decision and Order, dated March 18, 2005, which denied disquali~ication at that time. I The motion to d:isqualify is held in abeyance pending the deposition of I Robert Teitelbaum. Robert Teitelbaum is directed to appear for a deposition I within thirty (30} days from receipt of a copy of this Decision and a new Subpoena. The cross motion to vacate the Subpoena, dated August 14, 2006, is I denied as moot (the ~ubpoena was previously vacated by Decision dated March 18, 2005). The Courtjvacated the Subpoena in its prior decision because Defendant did not derponstrate relevance. Since that Decision, the First 1 [* 2] Department has hel~ that the Court must resort to parole evidence to interpreting I the contract at issui. Robert Teitelbaum does not dispute Defendant's contention that he drafted the relevant contractual provisions at issue and therefore, his testimony may relate to the intent of the parties (See North Shore Neurological Gp .. PC v. Levy. 72 AD2d 598 [2nd Dept 1979] [law firm was disqualified from rewesentation because the firm represented the defendant I during contract negtjtiations and would be called as witnesses to testify "as to the intentions of the parties in entering into the ... agreement"]). However, it is 1not clear what portions of his testimony would be subject to a I ! privilege claim. The:refore, because Robert Teitelbaum can only be compelled to ! testify to questions 'fhich are not subject to a privilege claim, absent his I deposition, the Court cannot make a determination as to whether he is a necessary witness, 'f'hose testimony would be adverse to his client so as to i I warrant disqualificat~on. The fact that other witnesses may be deposed does not I I I support Plaintiff's argument that Robert Teitelbaum should not be deposed until those witnesses are .deposed because he may possess knowledge of essential facts which differ from those other witnesses. 1 I I i 1 1t is true that ifi Robert Teitelbaum's testimony is merely cumulative, disqualification may npt be warranted (See, e.g., O'Donnell, Fox & Gartner, P.C. v R2000 Corp., 198 AD2~ 154 [1st Dept 1993]). However, the fact that other witnesses were present at the cqntract signing, does not support Plaintiff's argument that Robert Teitelbaum can only deposed after those witnesses are deposed because he apparently drafted th, clauses in question. 2 [* 3] It is hereby I I I ! ORDERED that the motion to disqualify is held in abeyance pending the I I deposition of Robert Teitelbaum, who is directed to appear for a deposition within thirty (30) days from repeipt of a copy of this Decision and a new Subpoena; and it is further ORDERED that the cross motion to vacate the Subpoena, dated August 14, 2006, is denied as moot. This constitutes the Interim Decision and Order of the Court. I I Dated: October 4, 2006 I I Enter: (~~: ~fl '!;" . ~· ocr ' 3 . I .1'( ~ - ED . ~ -. 7u 2006

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