Shah v. Ortiz

Appellate Division of the Supreme Court of New York

Shah v. Ortiz

112 A.D.3d 543, 976 N.Y.S.2d 878

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 24, 2013

StatusPublished

This text of 112 A.D.3d 543 (Shah v. Ortiz) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Shah v. Ortiz, 112 A.D.3d 543, 976 N.Y.S.2d 878 (N.Y. Ct. App. 2013).

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Opinion

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2013, which denied plaintiffs’ motion to disqualify Jeffrey P Shapiro, Esq. from serving as defendants’ co-counsel, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying plaintiffs’ motion to disqualify defendants’ co-counsel. Plaintiffs failed to meet their burden of showing that they had a prior attorney-client relationship with Mr. Shapiro which is fatal to a motion to disqualify under Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7 (b) (see Solow v Grace & Co., 83 NY2d 303, 308 [1994]; Campbell v McKeon, 75 AD3d 479 [1st Dept 2010]). Contrary to plaintiffs argument, defendants’ counsel did not previously represent the plaintiffs in this action, rather, he represented defendant A-Data Technology of Latin America.

We also find that counsel’s testimony in this action is unessential and would be cumulative. Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 AD3d at 481).

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Mazzarelli, J.P, Sweeny, Moskowitz, Freedman and Clark, JJ. [Prior Case History: 2013 NY Slip Op 31649(U).]

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Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 23, 2013, which denied plaintiffs’ motion to disqualify Jeffrey P Shapiro, Esq. from serving as defendants’ co-counsel, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying plaintiffs’ motion to disqualify defendants’ co-counsel. Plaintiffs failed to meet their burden of showing that they had a prior attorney-client relationship with Mr. Shapiro which is fatal to a motion to disqualify under Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.7 (b) (see Solow v Grace & Co., 83 NY2d 303, 308 [1994]; Campbell v McKeon, 75 AD3d 479 [1st Dept 2010]). Contrary to plaintiffs argument, defendants’ counsel did not previously represent the plaintiffs in this action, rather, he represented defendant A-Data Technology of Latin America.

We also find that counsel’s testimony in this action is unessential and would be cumulative. Accordingly, disqualification is not warranted under the advocate-witness rule (Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7; see Campbell, 75 AD3d at 481).

We have considered plaintiffs’ remaining contentions and find them unavailing. Concur — Mazzarelli, J.P, Sweeny, Moskowitz, Freedman and Clark, JJ. [Prior Case History: 2013 NY Slip Op 31649(U).]

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Bluebook (online)

112 A.D.3d 543, 976 N.Y.S.2d 878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shah-v-ortiz-nyappdiv-2013.

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