Appellate Division

Privilege and Deposition Transcripts

CPLR § 4503 Attorney

PJI 1:76

Ramirez v Willow Ridge Country Club, Inc., 2011 NY Slip Op 03714 (App. Div., 1st 2011)

To the extent plaintiff asserts the verdict was inconsistent, the argument is unpreserved since it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]).

Plaintiff's claim that the court improperly charged the jury pursuant to PJI 1:76 that an inference could be drawn from plaintiff's refusal to waive his attorney-client privilege and allow a former paralegal at the firm which represented plaintiff in his Worker's Compensation claim to testify for the defense is without merit (Matter of Commissioner of Social Servs. v Philip De G., 59 NY2d 137, 141 [1983] ["it is now established that in civil proceedings an inference may be drawn against the witness because of his failure to testify or because he exercises his privilege to prevent another from testifying, whether the privilege is constitutional . . . or statutory"]).

Plaintiff also asserts that the court erred in precluding plaintiff's use of the EBT transcript of defendant's witness Alexander Jack — plaintiff's foreman — during cross-examination on the grounds that plaintiff failed to show that he complied with CPLR 3116. Specifically, CPLR 3116(a) provides that a deposition shall be submitted to the witness who can make changes. The witness must then sign the deposition under oath. If the witness fails to sign and return the deposition within 60 days, it may be used as fully as though signed. A failure to comply with 3116(a) results in a party being unable to use the transcript pursuant to CPLR 3117 (see Santos v Intown Assoc., 17 AD3d 564 [2005]; Lalli v Abe, 234 AD2d 346 [1996]). It is the burden of the party proffering the deposition transcript to establish compliance with CPLR 3116(a) (Pina v Flik Intl. Corp., 25 AD3d 772, 773 [2006]).

Here, the court properly precluded the use of Jack's unsigned deposition transcript during Jack's cross-examination inasmuch as plaintiff failed to establish that the transcript was sent to Jack and that he failed to return it within 60 days. Although at one point in his testimony Jack seems to state that he signed the deposition at his lawyer's office, upon further questioning, it appears that he was confused and was actually referring to taking an oath on the date the deposition was taken (see CPLR 3113[b]), rather than on a separate date when the transcript was sent to him for changes and signing pursuant to CPL 3116.

Although there is no time frame as to when a party should send a deposition transcript to a witness for compliance with CPLR 3116(a), a trial court need not adjourn a trial during the cross-examination of a witness so the that the party cross-examining the witness may comply with the section. In any event, since plaintiff does not specify any parts of the deposition that he would have used, any error would appear to be harmless.

Nor has plaintiff demonstrated that any of his other claims regarding the conduct of the trial court were so prejudicial as to deprive him of a fair trial. The rulings on admissibility of evidence were proper and, in any event, any error was harmless.

The bold is mine. The privilege potion is probably the most interesting.

Goes back to its pre note of issue status

CPLR R. 3404

Tejeda v Dyal, 2011 NY Slip Op 03125 (App. DIv., 1st 2011)

Dismissal of this action pursuant to CPLR 3404 was improper. Here, when the note of issue was previously vacated, the case reverted to its pre-note of issue status, thereby rendering CPLR 3404 inapplicable (see Sellitto v Women's Health Care Specialists, 58 AD3d 828 [2009]; Johnson v Minskoff & Sons, 287 AD2d 233 [2001]). Defendants' avenues to dismiss this pre-note of issue case are limited to CPLR 3216 and 22 NYCRR 202.27. The latter is inapplicable to the facts herein, and defendants failed to comply with the preconditions of the former (see Johnson at 237-238).

Experts

Kranis v Biederbeck, 2011 NY Slip Op 03214 (App. Div., 2nd 2011)

"Although a causally-related emotional injury, alone or in combination with a physical injury, can constitute a serious injury'" within the meaning of Insurance Law § 5102(d) (Villeda v Cassas, 56 AD3d 762, 762, quoting Taranto v McCaffrey, 40 AD3d 626, 627), such injury must be serious and verifiable, and must also be established by objective medical evidence (see Bissonette v Compo, 307 AD2d 673, 674; see also Bovsun v Sanperi, 61 NY2d 219, 231-232; Krivit v Pitula, 79 AD3d 1432, 1432; Chapman v Capoccia, 283 AD2d 798).

Here, the defendant established her prima facie entitlement to judgment as a matter of law by demonstrating that the infant, Ryan Biederbeck (hereinafter the infant), did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Licari v Elliott, 57 NY2d 230; Bissonette v Compo, 307 AD2d at 674; cf. Small v Zelin, 152 AD2d 690, 691). The evidence submitted by the defendant in support of her motion established, prima facie, that there was no objective medical evidence to support the plaintiff's claim that the infant suffered from severe emotional distress or post-traumatic stress disorder as a result of the motor vehicle accident in which his father was killed. In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). The plaintiff's experts' affidavits and evaluation report were speculative and conclusory and did not raise a triable issue of fact as to the claim that the infant was suffering from a serious emotional injury (see e.g. Graziano v Cooling, 79 AD3d 803, 804-805).

Sometimes experts aren't necessary.

Love v Rockwell's Intl. Enters., LLC, 2011 NY Slip Op 03219 (App. Div., 2nd 2011)

We reject the appellant's argument that expert medical evidence was necessary to prove that the battery caused the plaintiff's broken jaw. Under the circumstances of this case, "the results of the alleged assault and battery are within the experience and observation of an ordinary layperson" (Breen v Laric Entertainment Corp., 2 AD3d 298, 300; see Lanpont v Savvas Cab Corp., 244 AD2d 208, 212).

3025 and 2106

CPLR R. 3025

CPLR R. 2106

Schwartz v Sayah, 2011 NY Slip Op 03227 (App. Div., 2nd 2011)

Leave to amend pleadings should be freely granted (see CPLR 3025[b]; Thomas Crimmins Contr. Co. v City of New York, 74 NY2d 166, 170) in the absence of prejudice or surprise resulting from the delay (see Hartford Cas. Ins. Co. v Vengroff Williams & Assoc., 306 AD2d 435, 436). Moreover, where the motion is made during trial, as here, the court's discretion in deciding the motion for leave to amend should be discrete, circumspect, prudent, and cautious (see Alrose Oceanside, LLC v Mueller, 81 AD3d 574; Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828). Leave to amend should not be granted where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Jenal v Brown, 80 AD3d 727; Morton v Brookhaven Mem. Hosp., 32 AD3d 381).

In this case, given the appellant's extensive and unexcused delay in seeking leave to amend, the obvious prejudice which the amendment would create in delaying the trial and confusing the proceedings with collateral issues, and the totally meritless nature of the proposed counterclaim given the absence of allegations regarding an intent to deceive on the part of the plaintiff and damages suffered by the appellant (see generally Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; Boglia v Greenberg, 63 AD3d 973, 975; Pui Sang Lai v Shuk Yim Lau, 50 AD3d 758, 759), the Supreme Court properly denied the motion for leave to amend (see Jenal v Brown, 80 AD3d 727; Tarantini v Russo Realty Corp., 273 AD2d 458, 459; County of Suffolk v Caccavalla, 227 AD2d 511, 513). We note in this regard that the submission by the appellant, an attorney, of an affirmation rather than an affidavit in support of the motion was improper (see CPLR 2106), and that document should have been disregarded because it was not in admissible form (see Matter of Nazario v Ciafone, 65 AD3d 1240, 1241; Lessoff v 26 Ct St. Asso.s., LLC, 58 AD3d 610, 611; Finger v Saal, 56 AD3d 606, 607; Pisacreta v Minniti, 265 AD2d 540).

SJ must be viewed in light favorable to the non-moving party

Someone was looking for a case that said this, or something like it, the other day.

CPLR R. 3212

Kutkiewicz v Horton, 2011 NY Slip Op 03215 (App. Div., 2nd 2011)

When viewed in the light most favorable to the nonmoving parties, here the plaintiffs (see Stukas v Streiter,AD3d, 2011 NY Slip Op 01832 [2d Dept 2011]), the evidence Horton submitted in support of the motion established prima facie that the sole proximate cause of the accident was Kutkiewicz's failure to yield the right of way to Horton's vehicle (see Yelder v Walters, 64 AD3d 762, 763-764; Vainer v DiSalvo, 79 AD3d 1023, 1024). In opposition, the plaintiffs failed to demonstrate a triable issue of fact as to whether Horton was at fault in the happening of the accident (see Yelder v Walters, 64 AD3d at 764; Vainer v DiSalvo, 79 AD3d at 1024). Consequently, the Supreme Court properly granted Horton's motion for summary judgment dismissing the complaint.

Non-Con and venue

CPLR § 510 Grounds for change of place of trial

CPLR R. 511 Change of place of trial

Otero v Davis, 2011 NY Slip Op 03191 (App. Div., 1st 2011)

Defendant failed to meet her burden to establish that New York is an inconvenient forum for this action (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474, 478-479 [1984], cert denied 469 US 1108 [1985]; Bank Hapoalim [Switzerland] Ltd. v Banca Intesa S.p.A., 26 AD3d 286, 287 [2006]). There is nothing in the record to suggest that the court did not properly consider the relevant factors (see Pahlavi at 479).

Mann v Janyear Trading Corp., 2011 NY Slip Op 03192 (App. Div., 1st 2011)

The untimeliness of defendants' demand for a change of venue and the subsequent motion is excusable because the summons, complaint, and bill of particulars misleadingly indicated that plaintiff resided in Bronx County (see Philogene v Fuller Auto Leasing, 167 AD2d 178 [1990]). Furthermore, the record shows that defendants promptly moved only days after ascertaining that the statements made by plaintiff were misleading (see id.).

Regarding the merits, the motion, which was based on plaintiff's designation of an improper county (CPLR 510[1]), should have been granted and venue changed to Kings County (defendants' residence). Plaintiff's assertion that she resided in Bronx County is untenable in light of her deposition testimony. When asked if she ever resided at her parents' residence in the Bronx "at any time during 2006," which was when the accident occurred and the action was commenced, plaintiff replied "no" and that she had lived in New York County during the relevant time (see Santulli v Santulli, 228 AD2d 247, 248 [1996]).

Mohsin v Port Auth. of N.Y. & N.J., 2011 NY Slip Op 03119 (App. Div., 1st 2011)

Defendants' moving papers were deficient inasmuch as they failed to provide the names, addresses and occupation of prospective non-party witnesses, the proposed testimony, the witnesses' willingness to testify, and that the witnesses will be inconvenienced by the present venue (see Jacobs v Banks Shapiro Gettinger Waldinger & Brennan, LLP, 9 AD3d 299 [2004]); the convenience of party witnesses is not a factor (see Gissen v Boy Scouts of Am., 26 AD3d 289 [2006]). The affidavits submitted for the first time in defendants' reply papers should not have been considered by the court, as they improperly raised new facts not directly responsive to plaintiff's opposition, which merely highlighted the deficiency of defendants' initial papers (see Root v Brotmann, 41 AD3d 247 [2007]; Job v Subaru Leasing Corp., 30 AD3d 159 [2006]).

Weiss v Wal-Mart Stores E., L.P., 2011 NY Slip Op 02814 (App. Div., 1st 2011)

Defendant met its initial burden of establishing that the venue chosen by plaintiff was improper (see Hernandez v Seminatore, 48 AD3d 260 [2008]; CPLR 510[a]). Defendant submitted proof indicating that plaintiff's claimed residence in New York County was an office building, not an apartment building. Defendant also submitted motor vehicle records showing that plaintiff resided in Orange County at all relevant times (see Collins v Glenwood Mgt. Cor., 25 AD3d 447, 448 [2006]. Plaintiff's conclusory affidavit attesting to her New York County residence was insufficient to rebut defendant's proof (see Furlow v Braeubrun, 259 AD2d 417 [1999]). Furthermore, since plaintiff forfeited the right to select the venue by choosing an improper venue in the first instance (see Roman v Brereton, 182 AD2d 556 [1992]), venue is properly placed in Suffolk County, defendant's designated residence for venue purposes.

Fraud SOL

Gorelick v Vorhand, 2011 NY Slip Op 03207 (App. Div., 2nd 2011)

"[A] fraud-based action must be commenced within six years of the fraud or within two years from the time the plaintiff discovered the fraud or could with reasonable diligence have discovered it'" (Sargiss v Magarelli, 12 NY3d 527, 532, quoting CPLR 213[8]; see CPLR 203[g]; Coombs v Jervier, 74 AD3d 724, 724). "The test as to when a plaintiff should have discovered an alleged fraud is an objective one" (Prestandrea v Stein, 262 AD2d 621, 622; see 2 NY PJI2d 3:20, at 192 [2011]). Thus "plaintiffs will be held to have discovered the fraud when it is established that they were possessed of knowledge of facts from which [the fraud] could be reasonably inferred" (Erbe v Lincoln Rochester Trust Co., 3 NY2d 321, 326; see Sargiss v Magarelli, 12 NY3d at 532; Higgins v Crouse, 147 NY 411, 416; Stride Rite Children's Group v Siegel, 269 AD2d 875, 876; Watts v Exxon Corp., 188 AD2d 74, 76; Azoy v Fowler, 57 AD2d 541, 541-542).

"Ordinarily such an inquiry presents a mixed question of law and fact" (Erbe v Lincoln Rochester Trust Co., 3 NY2d at 326; see K & E Trading & Shipping v Radmar Trading Corp., 174 AD2d 346; Azoy v Fowler, 57 AD2d 541, 541-542). As a general matter, "knowledge of the fraudulent act is required and mere suspicion will not constitute a sufficient substitute" (Erbe v Lincoln Rochester Trust Co., 3 NY2d at 326; see Sargiss v Magarelli, 12 NY3d at 532).

Where, as here, "it does not conclusively appear that a plaintiff had knowledge of facts from which the fraud could reasonably be inferred, a complaint should not be dismissed on motion and the question should be left to the trier of the facts" (Trepuk v Frank, 44 NY2d 723, 725; see Sargiss v Magarelli, 12 NY3d at 532; see Pericon v Ruck, 56 AD3d 635, 636-637; Oggioni v Oggioni, 46 AD3d 646, 648-649; Saphir Intl., SA v UBS PaineWebber Inc., 25 AD3d 315, 316). Accordingly, the Supreme Court erred when it, upon reargument, in effect, adhered to so much of the determination in the order entered September 11, 2009, as granted that branch of the motion of the defendant Harry Vorhand which was pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against the defendants Milan Vorhand, Harry Vorhand, and Thomas Vorhand as time-barred.

The perils of social networking and other discovery issues

In this case, nothing came of it, but it remains dangerous to those who are unaware. Turk wrote about it too.

CPLR § 3101 Scope of disclosure

Abrams v Pecile. 2011 NY Slip Op 03108 (App. Div., 1st 2011)

In this action for, among other things, conversion and intentional infliction of emotional distress, plaintiff alleges that defendant, a former employee of plaintiff's husband, retained, without permission, a copy of a CD containing seminude photographs of plaintiff taken by her husband during their honeymoon. Plaintiff further alleges that defendant refused to return the CD and photographs unless plaintiff's husband paid defendant $2.5 million to settle her sexual harassment claims brought against plaintiff's husband and his brother.

Supreme Court improvidently exercised its discretion in ordering plaintiff to comply with the outstanding discovery demands. With respect to defendant's demand for access to plaintiff's social networking accounts, no showing has been made that "the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Vyas v Campbell, 4 AD3d 417, 418 [2004][internal quotation marks and citation omitted]; see also McCann v Harleysville Ins. Co. of N.Y., 78 AD3d 1524, 1525 [2010]). Because plaintiff admits that she has copies of the photographs contained on the subject CD, defendant has also failed to show that she needs access to plaintiff's hard drive in order to defeat plaintiff's conversion claim. Nor has defendant shown that broad discovery concerning plaintiff's finances, education, immigration status, and educational background is "material and necessary" (CPLR 3101[a]).

With respect to defendant's demand for materials prepared in anticipation of litigation, defendant has failed to show "substantial need" for the materials or that she is "unable without undue hardship to obtain the substantial equivalent of the materials by other means" (Santariga v McCann, 161 AD2d 320, 321-322 [1990]; see CPLR 3101[d][2]). Further, defendant is not entitled to privileged communications between plaintiff and her prior counsel (see CPLR 4503[a]).

Discovery of materials concerning plaintiff's family and her husband's business should be obtained through nonparty discovery pursuant to CPLR 3101(a)(4).

Defendant's remaining discovery demands are either overbroad or irrelevant.

JFK Family Ltd. Partnership v Millbrae Natural Gas Dev. Fund 2005, L.P., 2011 NY Slip Op 03211 (App. Div., 2nd 2011)

No appeal lies as of right from an order denying an application to direct a witness to respond to questions posed during the course of a deposition (see McGuire v Zarlengo, 250 AD2d 823, 824; Mann v Alvarez, 242 AD2d 318, 320). However, this Court may deem the plaintiffs' notice of appeal from such an order to be an application for leave to appeal, and grant leave to appeal (see McGuire v Zarlengo, 250 AD2d at 824; Mann v Alvarez, 242 AD2d at 320), and we do so here.

CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." Generally, CPLR 3101 is to be construed liberally in favor of disclosure, so long as the information sought meets the test of "usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406, 406-407; see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69-70). However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosure (see Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531, 531). Moreover, the Supreme Court has broad discretion over the supervision of disclosure, and its determination will not be disturbed absent an improvident exercise of that discretion (Spodek v Neiss, 70 AD3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694, 695; Cabellero v City of New York, 48 AD3d 727, 728; Gilman & Ciocia, Inc. v Walsh, 45 AD3d at 531). Under the circumstances of this case, the Supreme Court's denial of those branches of the plaintiffs' motion pursuant to CPLR 3216 which were to compel the defendants to disclose certain documentary evidence and its grant of those branches of the defendants' cross motion which were for a protective and confidentiality order as to certain evidence sought through discovery, were provident exercises of its discretion.

The plaintiffs' remaining contentions, including those referable to their application to compel deposition witnesses to respond to certain questions, are without merit.

Taylor v New York City Hous. Auth., 2011 NY Slip Op 03229 (App. Div., 2nd 2011)

"[N]o appeal as of right lies from an order directing a party to answer questions propounded at an examination before trial" (Nappi v North Shore Univ. Hosp., 31 AD3d 509, 510-511 see Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 69). An order deciding "a motion to compel a witness to answer questions propounded at an examination before trial is akin to a ruling made in the course of the examination itself and as such is not appealable as of right even where it was made upon a full record and on the defendant's motion to compel responses" (Singh v Villford Realty Corp., 21 AD3d 892, 893 [citations omitted]; see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d 386, 387; Cedrone v Bon Secours Community Hosp., 31 AD3d 596). The plaintiffs have not sought leave to appeal, and there is nothing in the record that would warrant granting leave to appeal on the Court's own motion (see Daniels v Fairfield Presidential Mgt. Corp., 43 AD3d at 387).

W&W Glass, LLC v 1113 York Ave. Realty Co. LLC, 2011 NY Slip Op 02786 (App. Div., 1st 2011)

The record fails to support the motion court's determination that defendants' failure to comply with discovery obligations was willful, or in bad faith (see Fish & Richardson, P.C. v Schindler, 75 AD3d 219 [2010]; Banner v New York City Hous. Auth., 73 AD3d 502 [2010]. Absent such showing, the motion court erred in imposing the "harshest available penalty" against defendants (see Basset v Bando Sangsa Co., 103 AD2d 728, 728 [1984]).

Finally, we note that the record discloses no evidence of defendants' repeated failures to comply with the court's discovery orders. Indeed, there appear to be no prior motions by plaintiff to compel disclosure, rendering any motion to strike the answer pursuant to CPLR 3126 premature in this case.

The bold is mine.

Construed against the drafter

Gould Invs., L.P. v Travelers Cas. & Sur. Co. of Am., 2011 NY Slip Op 02844 (App. Div., 2nd 2011)

Here, the provision of the policy addressing the parties' obligations regarding subrogation provided that, "you must transfer to us all your rights of recovery against any person or organization for any loss you sustained and for which we have paid or settled. You must also do everything necessary to secure those rights and do nothing after loss to impair them." The Supreme Court properly determined that the plain and ordinary meaning of the first sentence of that provision obligated the plaintiff to transfer rights of recovery only upon payment of the claim and that, accordingly, no subrogation rights had accrued to the defendant upon which it could base its motion. As any ambiguity introduced by the second sentence of that provision must be construed against the insurer as drafter of the policy (see Essex Ins. Co. v Laruccia Constr., Inc., 71 AD3d at 818; United States Fire Ins. Co. v Knoller Companies, Inc., 80 AD3d 692), the Supreme Court's determination was proper.

1701 Rest. on Second, Inc. v Armato Props., Inc., 2011 NY Slip Op 03106 (App. Div., 1st 2011)

The parties agree that this Court need look no further than the "clear language" contained in the "four corners" of the agreement, but differ on their interpretation of the asserted clear language. Under the "clear language" rule of contract interpretation, we disregard extrinsic evidence if there is, as the parties agree, no ambiguity, and look only to the language of the agreement (see R/S Assoc. v New York Job Dev. Auth., 98 NY2d 29, 33 [2002]). Tenant correctly points to language in the 2001 Lease Extension and Modification Agreement stating that, other than as modified by such document, the terms of the 1994 lease "remain in full force and effect." Thus, the clear language of the rider to the 1994 lease directly supports tenant's contention that the renewal option was still in effect and had not been "subsumed" as defendant landlord argues. Landlord fails to direct the court to any clear language in support of its position.

"Ordinarily, a party cannot be compelled to litigate and, absent special circumstances, leave to discontinue a cause of action should be granted [unless] the party opposing the motion can demonstrate prejudice if the discontinuance is granted" (see St. James Plaza v Notey, 166 AD2d 439, 439 [1990]). Under the circumstances of this case, Supreme Court correctly denied landlord's motion. Landlord sought to discontinue its counterclaim for declaratory judgment in Supreme Court and then pursue similar relief in Civil Court, notwithstanding that tenant had cross-moved for leave to amend its complaint, which should be freely granted (CPLR 3025[b]), seeking to add a cause of action for declaratory relief related to the same subject matter. Moreover considerable discovery had already occurred in relation to landlord's counterclaim. Thus, it would have been inequitable to allow landlord to discontinue its counterclaim at this point in the litigation (see St James Plaza v Notey at 440).

The bold is mine.

Disqualification, etc. 2106 too.

Midwood Chayim Aruchim Dialysis Assoc., Inc. v Brooklyn Dialysis, LLC, 2011 NY Slip Op 02639 (App. Div., 2nd 2011)

"The basis of a disqualification motion is an allegation of a breach of a fiduciary duty owed by an attorney to a current or former client" (Rowley v Waterfront Airways, 113 AD2d 926, 927; see Matter of Kelly, 23 NY2d 368, 375-376; Ogilvie v McDonald's Corp., 294 AD2d 550, 552). However, "[d]isqualification denies a party's right to representation by the attorney of its choice" (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 131), and may create "significant hardships" for that party (Solow v Grace & Co., 83 NY2d 303, 310; see Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d at 131; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443).

Accordingly, where the Rules of Professional Conduct (22 NYCRR 1200.0) are invoked in litigation, courts "are not constrained to read the rules literally or effectuate the intent of the drafters, but look to the rules as guidelines to be applied with due regard for the broad range of interests at stake" (Niesig v Team I, 76 NY2d 363, 369-370; see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d at 443). It is the Supreme Court's responsibility to balance the competing interests, and "[t]he disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court" (Falk v Gallo, 73 AD3d 685, 685; see Cardinale v Golinello, 43 NY2d 288, 292; Matter of Erlanger [Erlanger], 20 NY2d 778, 779; Nationscredit Fin. Servs. Corp. v Turcios, 41 AD3d 802, 802; Flores v Willard J. Price Assoc., LLC, 20 AD3d 343, 344; Schmidt v Magnetic Head Corp., 101 AD2d 268, 277). Under the circumstances present here, the Supreme Court did not improvidently exercise its discretion when it denied the plaintiff's motion to disqualify the defendant's attorney (see Campbell v McKeon, 75 AD3d 479, 480; Kushner v Herman, 215 AD2d 633, 633; Matter of Fleet v Pulsar Constr. Corp., 143 AD2d 187, 189; Lopez v Precision Papers, 99 AD2d 507, 508; cf. Morris v Morris, 306 AD2d 449, 452).

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 2011 NY Slip Op 02067 (App. Div., 1st 2011)

Plaintiff law firm demonstrated that defendant's counsel played a vital role in the final settlement negotiations flowing from a settlement offer that plaintiff had allegedly previously procured and that defendant client later accepted, that the negotiations were an important part of the underlying dispute, that defendant's counsel was likely to be a key witness at trial, and that his proposed testimony would be adverse to his client's interests (see Sokolow, Dunaud, Mercadier & Carreras v Lacher, 299 AD2d 64, 75-76 [2002]; Martinez v Suozzi, 186 AD2d 378 [1992]).

While plaintiff improperly submitted the affirmation, rather than affidavit, of a partner (see CPLR 2106), under the circumstances, "this defect was merely a technical procedural irregularity which did not prejudice the defendant" (see Board of Mgrs. of Ocean Terrace Towne House Condominium v Lent, 148 AD2d 408 [1989], lv denied 75 NY2d 702 [1989]; see CPLR 2001).