necessary to allow the Owner to enter into the lease. Reichman testified that it was his understanding that, absent these consents:
there would be no transaction I presume. And the reason I say I presume is because I think there was also a possibility that, and I don't recall the general partners getting into this fact, the consent was not required but they determined to go ahead and get the consent anyway.
Reichman further testified that, as of April 17, 1990, the consents were not obtained.
Reichman also testified about the substance of a proposed escrow agreement between the Owner and Loews. According to P 5 of that agreement, the effect of a failure to obtain the consents by May 31, 1991 was to render the lease of no further force and effect. See Danzig Aff. Ex. C. P 5. The escrow agreement also states that:
WHEREAS, as of the date hereof, Landlord has not yet obtained the consent of [the Mortgagee] . . . and the consent of the Limited Partners and, as a result, Landlord may not at this time convey a leasehold interest in the Premises to [Loews]. . . .
Although Reichman's testimony relates to a material element of Parke-Hayden's case, namely, whether the Owner was "able" to convey a leasehold interest to Loews, there is insufficient information before the court at this time to determine whether the testimony is likely to prejudice Parke-Hayden and whether it is "necessary" for purposes of disqualification. It is unclear, for instance, whether the Owner's failure to obtain consents from its mortgagee and limited partners would actually impair its power of alienation or whether it would simply put Loews into default under agreements with those parties. Moreover, the magical quality of the date April 17, 1990 has not been established. The escrow agreement plainly states the operative date to be May 31, 1990. Finally, any inconsistency between Reichman's testimony and Teich's testimony that consents had been obtained is not "sufficiently adverse to the factual assertions or account of events offered on behalf of the client such that the bar or the client might have an interest in the lawyer's independence in discrediting that testimony." Assuming that Teich is an appropriate witness on this subject in the first place, he testified that he did not know what date the approvals were obtained and that he was unaware if the approvals were written or oral. Teich's testimony suggests that his understanding of "consents" was a mere oral sign-off and that he was not commenting on contractual formalities. See Danzig Aff. Ex. D at 136-37 ("He [Pilevsky] got in touch . . . with all his limited partners and it was agreed.").
Furthermore, Loews has not demonstrated that Reichman's testimony is "necessary" for purposes of disqualification under DR 5-102(B). First, Reichman's testimony as to the substance of the escrow agreement is unnecessary because "other evidence" is available, not the least of which is the agreement itself. See Kirshon, Shron, Cornell & Teitelbaum P.C. v. Savarese, 581 N.Y.S.2d 487 (App. Div. 3d Dep't 1992) (testimony not "necessary" where cumulative of other evidence); see also Lamborn, 873 F.2d at 532 (not disturbing district court finding that testimony on certain issue would have been cumulative and therefore not grounds for disqualification). Second, Loews has not established that Reichman is the sole witness capable of testifying as to when the consents were or were not obtained. Presumably, the Owner's principals involved in the transaction would have this knowledge at their disposal. However, Loews brought this motion prior to the scheduled depositions of those individuals, thus rendering it impossible to determine the necessity of Reichman's testimony. Because Reichman's testimony as to the consents issue may prove to be merely cumulative, it is not appropriate to disqualify Davis & Gilbert on this basis at this time. See id. (disqualification premature where discovery has not been had).
Loews next argues that Reichman's testimony will be prejudicial to Parke-Hayden because it indicates Parke-Hayden's awareness that favorable rock and asbestos test results were a condition precedent to Loews entering into the lease. Loews's assertion is unsupported by any of its factual submissions on this motion. These submissions establish nothing more than that Parke-Hayden was aware that Loews was interested in conducting tests at the Premises before the commencement of the term of the lease. However, neither Reichman's deposition testimony or the documentary exhibits to Loews's papers evidence an awareness that these tests were a condition to Loews entering into the lease. The evidence simply does not support Loews's conclusory assertion that "Mr. Reichman knew full well that Loews needed to determine whether there was a rock problem before it could agree to sign a lease." Loews Memo. at 13.
Finally, Loews argues that Reichman's testimony will be prejudicial because it conflicts with Teich's testimony as to his awareness (or lack thereof) of the projected cost of asbestos and rock removal and as to his discussions (or lack thereof) of conversations regarding the rock issue after April 20, 1992. However, given the questionable materiality of the underlying evidence, any such contradictions have not been shown to be sufficiently adverse to the Owner at this time to warrant disqualification.
For the foregoing reasons, Loews motion to disqualify Davis & Gilbert from representing Parke-Hayden is denied.
It is so ordered.
New York, N.Y.
July 27, 1992
ROBERT W. SWEET
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