Court Denies Motion To Disqualify Counsel

Posted: January 26, 2026 / Written by: Samuel L. Butt, Joshua Wurtzel, Channing J. Turner, Thomas A. Kissane / Category Commercial

Court Denies Motion To Disqualify Counsel

On November 24, 2025, in Bapaz NYC W. 46 St Group LLC v. Assa Props, Inc., Index No. 652456/2018, Justice Andrew Borrok denied defendants’ motion to disqualify plaintiff’s attorney. The Court explained:

The Defendants now seek to disqualify Mr. Castro from representing the Plaintiff on the grounds that “in order for Plaintiff to prove that it actually entered into an enforceable Remaining Agreement, Castro will have to testify about the negotiations for that agreement” (NYSCEF Doc. No. 326 at 9) and that this is the precise situation that Rule 3.7 is designed to address. The argument fails.

Rule 3.7(a) of New York’s Rules of Professional Conduct provides that “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” Nonetheless, a party in a dispute has a valued right to representation by counsel of its choice and a party moving to restrict that right has a heavy burden and must be carefully scrutinized (Ullman-Schneider v Lacher & Lovell-Taylor PC, 110 AD3d 469, 470 [1^st Dept 2013]). Whether a motion to disqualify should be granted rests in the discretion of the court (Mayers v Stone Castle Partners, LLC, 126 A.D.3d 1, 6 [1st Dept 2015], citing Macy's Inc. v J.C. Penny Corp., Inc., 107 AD3d 616, 617 [1st Dept 2013]).

Initially, the Court notes that the Plaintiff indicates that it will not call Claude Castro as a witness. The Defendants do not say that they intend to call him either. Instead, and as set forth above, they say that the Plaintiff needs to call him as a witness to prove their claim and that because they can not prove their claim without calling him as a witness, he must be disqualified. Even if true that Mr. Castro is a necessary witness for the Plaintiff (and as discussed below it does not appear to be the case) and he does not testify, the result would simply be that the Plaintiff does not meet its burden at trial.

For clarity, Mr. Castro previously affirmed that he was retained in mid-2016 – i.e., after the Remaining Agreement was executed (see NYSCEF Doc. No. 167). In that affirmation, Mr. Castro describes what he learned after the documents were executed and in connection with the due diligence for the closing and the role of many others involved in addressing the need for the Lender’s consent to the proposed transfer and the Lavi lawsuit, including Andrew Albstein, Esq. (Mr. Israeli’s transactional attorney of the law firm Goldberg Weprin Finkel Goldstein LLP), David Israeli, Michael Hershkowitz, Esq., Tomer Dafna, Assa, Assa’s in-house counsel, Richard Migliaccio, Esq., and Michael Lubin, Esq. (id.). Nothing in the record indicates that these other individuals remain unavailable to testify on the relevant issue identified by the Appellate Division (including Messrs. Hershkowtiz and Dafna who can now appear at a deposition before trial and can be subpoenaed for trial as the Plaintiff indicates that they have pled guilty) as to whether the $700,000 was paid and whether the Plaintiff exercised its option under the Remaining Agreement.[] Thus, and because Mr. Castro is not “likely to be a witness on a significant issue of fact,” the defendant does not meet its burden that disqualification is warranted (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]).

(footnote omitted).

Contact the Commercial Division Blog Committee at commercialdivisionblog@schlamstone.com if you or a client have questions concerning disqualification.