McElroy v. Kitchen

Appellate Division of the Supreme Court of New York

McElroy v. Kitchen

254 A.D.2d 828, 677 N.Y.S.2d 835, 1998 N.Y. App. Div. LEXIS 10566

Appellate Division of the Supreme Court of the State of New York·Decided October 2, 1998·Published·Cited by 2 cases

Opinion

Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of third-party defendants to dismiss the third-party complaint seeking contribution and indemnification. We affirm that portion of the order for reasons stated in the decision at Supreme Court (Kane, J.).

The court also properly denied the motion of defendants to disqualify plaintiffs’ attorney and his law firm from further representation of plaintiffs in this legal malpractice action. The fact that an attorney is in a position to provide relevant testimony regarding the merits and value of the underlying action does not warrant disqualification. Defendants failed to establish that the attorney was a necessary witness (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445-446) and that his testimony would prejudice plaintiffs’ case (see, Transcontinental Constr. Servs. v McDonough, Marcus, Cohn & Tretter, 216 AD2d 19; Balboaa Land Dev. v Morris, 201 AD2d 850, 851-852). (Appeal from Order of Supreme Court, Erie County, Kane, J. — Dismiss Pleading.) Present— Green, J. P., Lawton, Callahan, Balio and Fallon, JJ.

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Order unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motion of third-party defendants to dismiss the third-party complaint seeking contribution and indemnification. We affirm that portion of the order for reasons stated in the decision at Supreme Court (Kane, J.).

The court also properly denied the motion of defendants to disqualify plaintiffs’ attorney and his law firm from further representation of plaintiffs in this legal malpractice action. The fact that an attorney is in a position to provide relevant testimony regarding the merits and value of the underlying action does not warrant disqualification. Defendants failed to establish that the attorney was a necessary witness (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445-446) and that his testimony would prejudice plaintiffs’ case (see, Transcontinental Constr. Servs. v McDonough, Marcus, Cohn & Tretter, 216 AD2d 19; Balboaa Land Dev. v Morris, 201 AD2d 850, 851-852). (Appeal from Order of Supreme Court, Erie County, Kane, J. — Dismiss Pleading.) Present— Green, J. P., Lawton, Callahan, Balio and Fallon, JJ.

McElroy v. Kitchen, 254 A.D.2d 828, 677 N.Y.S.2d 835, 1998 N.Y. App. Div. LEXIS 10566 (N.Y. Ct. App. 1998).

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254 A.D.2d 828 (McElroy v. Kitchen) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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