The opinion of the court was delivered by: Townes, United States District Judge
On March 7, 2006, Magistrate Judge Wall issued a Report and Recommendation ("the R&R"), recommending, inter alia, that defendants' two motions to disqualify plaintiff's counsel, dated September 16, 2005, and September 23, 2005, be denied without prejudice. The defendants who brought the September 23 motion filed a timely objection to the R&R, arguing that Magistrate Judge Wall misapprehended the basis for their disqualification motion. In accordance with 28 U.S.C. § 636(b)(1), this Court has reviewed de novo those portions of the R&R to which objection has been made. Although this Court agrees that Magistrate Judge Wall may have misunderstood a portion of the September 23, 2005, motion to disqualify plaintiff's counsel, the Court concludes that this motion was nonetheless properly denied without prejudice.
This action arises from an October 13, 2002, incident in which plaintiff, Caffele Morgan, was allegedly attacked outside Sunrise Cinemas by defendant Raymond Smith -- a private security guard employed by defendant S.E.B. a/k/a Security Enforcement Bureau, Inc. ("S.E.B."), which had contracted to provide security services at the theater. Plaintiff, who was knocked unconscious during the attack and had to be taken to the hospital, was subsequently arrested and allegedly further assaulted, threatened and/or intimidated by three Nassau County Police Officers (collectively, the "Police Officer Defendants").
In October 2003, plaintiff filed this action. Although the first cause of action in the Amended Complaint raises a civil rights claim pursuant to 42 U.S.C. § 1983 against the Police Officer Defendants, the remaining seven causes of action raise State law claims. The Amended Complaint alleges, inter alia, that the Police Officer Defendants violated plaintiff's rights under the New York State Constitution by maliciously prosecuting him; that all defendants are liable for assault and battery and that defendants Nassau County, Sunrise Cinemas and S.E.B. are liable for negligently hiring and retaining the employees who allegedly assaulted, threatened and/or intimidated plaintiff. In addition, the fifth cause of action alleges false arrest and false imprisonment, although it is not clear whether this claim is brought against "all defendants," as indicated in the title, or solely against the Police Officer Defendants and Nassau County, the only defendants specifically named in the cause of action.
In May 2005, this Court granted the Police Officer Defendants, Nassau County and the Nassau County Police Department (collectively, the "Nassau County Defendants") permission to move for summary judgment pursuant to Fed. R. Civ. P. 56.*fn1
On September 16, 2005, after serving their motion for summary judgment and receiving a response from plaintiff, the Nassau County Defendants filed a letter motion to disqualify plaintiff's counsel from the case. In that motion, the Nassau County Defendants stated that their as-yet-unfiled motion will seek summary judgment on the malicious prosecution claims on the ground that the criminal proceedings arising from the October 13, 2002, incident had not been terminated favorably to plaintiff. To support this argument, the Nassau County Defendants' motion will include an affidavit from an Assistant District Attorney, stating that the charges against plaintiff had been dismissed due to the unavailability of the complainant, Raymond Smith. However, in responding to this argument, plaintiff will submit an affirmation from his attorney, Patrick Okeke, Esq., who also represented plaintiff in the criminal proceedings. This affirmation will state that the prosecution dismissed the case pursuant to C.P.L. § 170.30(1) at the urging of the trial court, shortly after a pre-trial hearing at which Smith's supervisor, Keith English, indicated that plaintiff was a victim, not the aggressor, during the October 13, 2002, incident.
In moving to disqualify plaintiff's counsel, the Nassau County Defendants reasoned that if Okeke's affirmation was necessary to defeat summary judgment on the favorable termination issue, Okeke's testimony would also be necessary at trial. If so, plaintiff's counsel would be disqualified from representing plaintiff under Disciplinary Rule 5-102(a), which requires lawyers to withdraw from cases in which "the lawyer knows or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client . . . ." N.Y. Comp. Codes R. & Regs., tit. 22, §1200.21 (2005).
One week later, the remaining defendants (the "Non-Nassau County Defendants") also moved, inter alia, to disqualify plaintiff's counsel. The Non-Nassau County Defendants argued that "Disciplinary Rule 5-102 mandates that Mr. Okeke and his firm be disqualified because Mr. Okeke has come forward with personal knowledge of facts that are strenuously contested in this matter." Letter from Theodore W. Ucinski to Hon. Sandra L. Townes, dated September 23, 2005, at 4. However, the motion did not specifically identify all of the "facts" of which Okeke allegedly had "personal knowledge," much less explain the manner in which such "facts" were relevant to a significant issue in the case. Instead, the motion stated:
For example, Mr. Okeke reveals for the first time in opposition to co-defendants' motion for summary judgment that during the course of his investigation as plaintiff's criminal defense attorney he "became aware" of a "missing statement" allegedly given by S.E.B. Supervisor Keith English to the Nassau County Police Department. Mr. Okeke further reveals for the first time based on his personal knowledge that Mr. English gave testimony at an evidentiary hearing during the course of the criminal proceedings against plaintiff.
Id. (internal citations omitted)
By Order dated September 27, 2005, this Court referred both motions to disqualify plaintiff's counsel to Magistrate Judge Wall for a report and recommendation. On March 7, 2006, Magistrate Judge Wall issued the R&R, recommending, inter alia, that the disqualification motions be denied without prejudice to renewal following the determination of the motion for summary judgment. Magistrate Judge Wall noted that it was unclear "whether the state court made any statements on the record or findings" which would explain its basis for dismissing the charges against plaintiff, and that Okeke's "perceptions . . . as to the underlying reason behind the dismissal" were therefore "possibly irrelevant to a determination of whether the dismissal was favorable." R&R at 5. Magistrate Judge Wall reasoned that disqualification would not be required unless the Court, in the course of adjudicating the motion for summary judgment, determined (1) "that the attorneys' perceptions of the reason behind the dismissal are relevant to a determination of whether the dismissal was favorable" and (2) that Okeke, being in the best position to refute the prosecutor's perception, "'ought' to testify." Id.
Magistrate Judge Wall interpreted the Non-Nassau County Defendants' motion for disqualification as raising essentially the same issue as the Nassau County Defendants' motion. The R&R states:
The non-Nassau County defendants move . . . to disqualify plaintiff's counsel for several reasons. First, these defendants point to [Okeke's] statements regarding his becoming aware of a missing statement in the underlying criminal action as further facts about which he ought to testify at trial. These additional statements by [Okeke] again go to the issue of whether the termination of that action was "favorable." To the extent these defendants argue that [Okeke] has come ...