disqualification; rather, the crucial inquiry is whether the subject testimony is necessary, taking
into account such factors as the significance of the matter, the availability of other evidence and
the weight of the testimony." Brooks v.
Lewin, 48 AD3d 289 (1st Dept), lv dismissed in part and denied in part, 11
NY3d 826 (2008).
Under this standard, the Sellers have not met their burden of showing that Bergman
should be disqualified as counsel for the Colacinos under the advocate-witness rule as the record
shows that Bergman had no part in the underlying controversy prior to the issuance of the Notice
of Cancellation which is the time period relevant to questions of fact relating to whether the
Colacinos acted in bad faith. Furthermore, even if it could be argued that Bergman might have
some knowledge of relevant facts, the Sellers have not shown that his testimony would be
adverse to his clients or necessary in light of the other evidence available concerning such facts.
Conclusion
In view of the above, it is
[*12]
ORDERED that the motion for summary judgment by
plaintiffs Michael D. Colacino and Deborah Colacino (motion seq. no. 001) is denied; and it is
further
ORDERED that the cross motion by defendants Dynda J. Andrews and John J.
Kirby, Jr. to disqualify Henry J. Bergman, Esq., as counsel for the Colacinos is denied; and it is
further
ORDERED that the parties shall appear for a preliminary conference in Part 11,
room 351, 60 Centre Street on July 28, 2011 at 9:30 am.
DATED: July, 2011
J.S.C.
Footnotes
Footnote 1: The term "Closing date" is not
specifically defined under the Contract. The Contract states that the date scheduled for Closing is
"on or about" September 1, 2009, but the Defendants acknowledge that the date scheduled for