Maxon v. Woods Oviatt Gilman LLP

45 A.D.3d 1376, 845 N.Y.S.2d 893

Opinion

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 plaintiffs 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.