158 A.D.2d 132 | N.Y. App. Div. | 1990
OPINION OF THE COURT
This action revolves around a contract pursuant to which
Some time after issue was joined, plaintiffs brought a motion to disqualify the law firm representing defendants on the ground, inter alia, that attorneys for the firm would be called as witnesses. Defendants opposed the motion and cross-moved for an order dismissing the complaint for failure to state a cause of action and for plaintiffs’ willful failure to provide agreed-upon disclosure. Supreme Court denied the motions and these cross appeals followed.
We are unpersuaded by plaintiffs’ position that Supreme Court erred in denying their motion to disqualify defendants’ counsel. Their argument focuses on three potential witnesses who are attorneys in the firm representing defendants: William Connors, who served on the executive committee of the board of directors of Samaritan; Lambert Ginsberg, who advised Burdett regarding Santiago-Samson’s termination; and Gerald Katzman, who was involved in the drafting of the contract at issue herein. "[T]he Code of Professional Responsibility directs that a lawyer who ought to be called as a witness on behalf of his client shall withdraw from the conduct of the trial and his firm shall not continue representation” (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 444 [emphasis in original]; see, Code of Professional Responsibility EC 5-9; DR 5-102). Whether an opposing party intends to call the attorney as a witness is not dispositive of whether the attorney ought to be called (see, L & W Supply Corp. v Ruthman, 135 AD2d 877, 878). A finding that the attorney’s testimony is necessary is required, and the attorney’s "relevant knowledge” or "involve[ment] in the transaction at issue” is not determinative (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., supra, at 445; see, Plotkin v
Turning now to defendants’ cross motion to dismiss the complaint, we initially note that in view of the motion’s treatment by the parties and Supreme Court, the nature of the motion was clearly one of dismissal pursuant to CPLR 3211 (a) (7) and our review proceeds accordingly. Pertinent to our examination of plaintiffs’ complaint is “whether claimant has a cause of action, not whether one has been stated in the complaint” (Brown v State of New York, 125 AD2d 750, 751, lv dismissed 70 NY2d 747 [emphasis supplied]). In this regard, we agree with defendants that the entire complaint, inasmuch as it is brought by Schackow individually, should be dismissed. Schackow was not an individual party to the contract and, in our view, has failed to sufficiently establish in the complaint any right to sue for breach thereof.
Finally, we find that Supreme Court properly denied defendants’ motion to dismiss the complaint for plaintiffs’ willful failure to provide agreed-upon disclosure (see, CPLR 3126). Defendants failed to demonstrate willfulness on plaintiffs’ part such as to warrant dismissal (see, Brandi v Chan, 151 AD2d 853, 854, appeal dismissed 75 NY2d 789).
Mahoney, P. J., Yesawich, Jr., Levine and Mercure, JJ., concur.
Order modified, on the law, without costs, by reversing so much thereof as denied defendants’ cross motion to dismiss the complaint of plaintiff Eckart Schackow in its entirety and the second, third, fourth and fifth causes of action of plaintiff Burdett Radiology Consultants, P. C.; cross motion granted to that extent and said portions of the complaint are dismissed; and, as so modified, affirmed.