July 19, 2013
SECURITY PACIFIC NATIONAL BANK, Plaintiff,
TRACIE EVANS, et al. Defendants Index No. 22899/1992
DECISION AND ORDER
Shlomo S. Hagler, J.S.C.
In this protracted foreclosure action, defendant Tracfe Evans ("Evans" or "defendant") moves, under motion sequence number 015, a protective order striking and/or modifying/limiting the document request of plaintiff Security National Bank ("SPN Bank" or "plaintiff), dated August 1, 2011, pursuant to CPLR § 3103(a). Plaintiff cross-moves, under the same motion sequence number, (1) pursuant to CPLR § 3126 to preclude or limit defendant's evidence or in the alternative, to dismiss defendant's claims with prejudice for failure to comply with discovery, and (2) to disqualify David Worth, Esq. ("Worth") from continuing in his role as counsel for defendant Evans, in accordance with Rule 3.7 of the New York Rules of Professional Conduct ("the advocate-witness rule") on the grounds that Worth will be required to testify about substantive issues in the upcoming litigation.
At oral argument, this Court resolved the issues regarding discovery by granting both motions "to the extent of requiring the defendants to produce the documents as set forth within 30 days" and, if they fail to do so, allowing the parties to move for appropriate relief (Transcript of Oral Argument, dated February 25, 2013, at p. 15, lines 5-9). The sole remaining issue on this motion and cross-motion is the disqualification of Worth as attorney for Evans. At issue in the underlying action is whether or not plaintiff breached an implied warranty to negotiate in good faith. Plaintiff claims that Worth, who negotiated all the agreements between CitiMortgage Inc. ("CMI") and defendant Evans, will be required to testify as to those negotiations. (Affirmation of Plaintiff s Counsel William M. Rifkin, Esq. in Support of Plaintiff s Cross-Motion ["Rifkin Aff. In Support"], at
¶ 27.) Specifically, plaintiff alleges that Worth has knowledge of three particular areas of importance: (1) that Worth negotiated the Settlement Agreement with Andrew M. Roth, Esq. ["Roth"], the attorney for CMI at the time, (2) that Worth drafted a letter for CMI to sign that would resolve Evans' credit issues, and (3) that Worth informed Roth on March 30, 2007 that all the credit issues were resolved and the closing would occur on or about April 13, 2007. (Id. at
¶ 28.) If Worth is required to testify, he will be unable to continue in his capacity as counsel for the defense under the advocate-witness rule. Worth avers that his testimony is unnecessary and, therefore, he should not be disqualified. (Affirmation of David Worth in Support of Defendant's Sur-Reply, at ¶10.)
"Disqualification [of counsel] is a matter which rests within the sound discretion of the trial court." (Ferolito v Vultaggio, 99 A.D.3d 19, 27 [1st Dept 2012] citing Harris v Sculco, 86 A.D.3d 481 [1st Dept 2011].) Motions to disqualify opposing counsel are generally disfavored since such motions are often made for tactical reasons, may result in unnecessary delay, and interfere with a party's right to choose his or her own counsel and, therefore, require a high standard of proof for those seeking disqualification. (Cohen v Acorn Intl. Ltd., 921
F.Supp. 1062, 1063-64 [SDNY 1995] [citations omitted].) More importantly, to trigger the "advocate-witness" rule the movant must show that the attorney' s testimony is necessary and that the same information cannot be gleaned from another source. (See S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 N.Y.2d 437 .) In S & S Hotel Ventures, the Court of Appeals unanimously reversed the Supreme Court's decision and the subsequent Appellate Division, First Department's affirmance, which disqualified plaintiffs attorney who participated in negotiations and communications with defendant's counsel regarding a loan agreement and the resulting default. The Court of Appeals found that the attorney should not be disqualified because his testimony was not necessary [emphasis in original] (id. at 445-446.) The Court of Appeals also noted that, while the New York Code of Professional Responsibility's Disciplinary Rules (the predecessor to the current New York Rules of Professional Conduct) are to be considered, they are not to be applied mechanically when disqualification is raised in litigation; instead the court should take into consideration all relevant circumstances and has discretion in applying these disciplinary rules or codes (id. at 443-445).
In this case, Evans has submitted an affidavit stating explicitly that not only does she have personal knowledge of all the areas that the plaintiff claims Worth needs to testify about, but that all actions Worth performed were done at her request or in her presence. (Affidavit of Defendant Tracie Evans in Support of Defendant's Sur-Reply, ¶ 3-7.) Since Evans is clearly able to provide all the information the plaintiff claims they will require, Worth's testimony is not necessary.
Plaintiff has failed to meet the burden of proof required to authorize disqualification under the advocate-witness rule and plaintiffs motion to disqualify Worth as counsel for defendant Evans is, therefore, denied.
Accordingly, it is hereby
ORDERED that defendant Tracie Evans' motion and Plaintiffs cross-motion are both granted to the extent of requiring the defendants to produce the documents as set forth within 30 days and allowing the parties to move for appropriate relief if defendants fail to do so; and it is further
ORDERED, that this Court denies that branch of the motion of plaintiff Security Pacific National Bank to disqualify David Worth, Esq., from continuing as counsel for defendant Tracie Evans.
The foregoing constitutes the decision and order of this Court. The clerk of the court is hereby directed to enter this decision and order.