Commercial Division Blog

Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: December 11, 2015

Attorney Not Disqualified Under Attorney-Witness Rule When Testimony Would Be Cumulative

On December 3, 2015, the First Department issued a decision in Orbco Advisors LLC v. 400 Fifth Realty LLC, 2015 NY Slip Op. 08935, affirming the trial court’s refusal to disqualify counsel under the attorney-witness rule, explaining:

The court providently exercised its discretion by denying plaintiff’s motion at this early stage of the litigation. Plaintiff did not meet its heavy burden of showing that the testimony of the subject attorneys would be both necessary and prejudicial to defendants. Rather, the record reflects that the attorneys’ testimony would be cumulative, and a witness whose testimony is, at best, cumulative is not a necessary witness. Should discovery reveal otherwise, plaintiff may renew its motion, at which point defendants may not argue that plaintiff is merely seeking a tactical advantage.

(Internal quotations and citations omitted) (emphasis added).

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