Nationscredit Financial Services Corp. v. Turcios

41 A.D.3d 802, 839 N.Y.S.2d 523

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2007
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Luis A. Turcios and Aurora Velasquez appeal from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated August 10, 2006, as granted the plaintiffs motion to disqualify Steven A. Sternlicht from representing them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The disqualification of an attorney is a matter which rests within the sound discretion of the trial court (see Boyd v Trent, 287 AD2d 475 [2001]). Disqualification is warranted if the attorney’s testimony is necessary (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445-446 [1987]). The burden of demonstrating necessity falls upon the challenging party (id. at 445). Under the circumstances presented, the plaintiff established that attorney Steven A. Sternlicht is an essential witness who ought to be called to testify at trial. Accordingly, the Supreme Court properly granted the plaintiff s motion to disqualify him from representing the appellants (see Fernandes v Jamron, 9 AD3d 379 [2004]; Chadrjian v Purcell, 293 AD2d 699 [2002]; Korfmann v Kemper Natl. Ins. Co., 258 AD2d 508 [1999]). Florio, J.P., Fisher, Carni and McCarthy, JJ, concur.