You are here: / / DEFENDANTS MOVED TO DISQUALIFY PLAINTIFF, AN ATTORNEY AND PHYSICIAN REPRESENTING...

DEFENDANTS MOVED TO DISQUALIFY PLAINTIFF, AN ATTORNEY AND PHYSICIAN REPRESENTING HIMSELF IN THIS FRAUD AND BREACH OF CONTRACT ACTION, ARGUING PLAINTIFF MAY BE CALLED AS A WITNESS; THE DEFENDANTS DID NOT SPECIFY HOW PLAINTIFF’S TESTIMONY WOULD BE NECESSARY TO THE DEFENSE; THE MOTION TO DISQUALIFY SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion to disqualify plaintiff Colantonio, an attorney and physician representing himself, should not have been granted. Plaintiffs brought a fraud an breach of contract action arising from the lease/purchase of a liposuction laser unit. Defendants moved to disqualify arguing Colantonio may be called as a witness:

“In order to disqualify counsel on the ground that he or she may be called as a witness, the party moving for disqualification has the burden of demonstrating that ‘(1) the testimony of the opposing party’s counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party'” … . In turn, “[a] finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” … .

… [T]he defendants each failed to make the requisite showing that Colantonio should be disqualified as counsel for Empire Medical and Cestari. The defendants failed to specify the facts about which they expect Colantonio to testify or to establish how such testimony would be necessary to their defense … . They also failed to allege that Colantonio’s testimony would be prejudicial to plaintiffs Cestari or Empire Medical … . Indeed, Colantonio and Cestari both attested to the opposite. At this early stage in the litigation, discovery has not established the substance and necessity of Colantonio’s testimony in the action … . Moreover, in opposition to the motions, plaintiff Cestari averred that disqualification of Colantonio would cause a substantial hardship on him, which constitutes an exception to the rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0) advocate-witness disqualification … . Empire Med. Servs. of Long Is., P.C. v Sharma, 2020 NY Slip Op 07545, Second Dept 12-16-20

 

You might also like
GALLBLADDER SURGERY WAS PERFORMED ON PLAINTIFF, BUT HER GALLBLADDER HAD BEEN REMOVED YEARS BEFORE; THE DOCTORS APPARENTLY DID NOT REVIEW THE AVAIABLE MEDICAL RECORDS; THE RADIOLOGIST DID NOT DISCOVER THAT THE GALLBLADDER WAS ABSENT; THE DOCTORS’ MOTIONS FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
REAL PROPERTY TRANSFER BY RELIGIOUS CORPORATION INVALID, CORPORATION DID NOT SEEK COURT APPROVAL FOR THE TRANSFER 2ND DEPT.
IT WAS ALLEGED ONE MAN INTENDED TO DOUSE ANOTHER WITH LIQUID IN A CUP BUT UNINTENTIONALLY THREW THE CUP ITSELF CAUSING INJURY; THERE WAS A QUESTION OF FACT WHETHER THE INJURY WAS CAUSED BY INTENTIONAL CONDUCT OR AN ACCIDENT (SECOND DEPT).
ELEMENTS OF AIDING AND ABETTING FRAUD EXPLAINED, WHEN FRAUD IN THE INDUCEMENT CAN INVALIDATE AN ARBITRATION CLAUSE EXPLAINED (NOT THE CASE HERE).
JUDGE DID NOT HAVE THE DISCRETION TO DENY PLAINTIFF’S MOTION FOR ARREARS AND COUNSEL FEES MADE AFTER THE JUDGMENT OF DIVORCE; ANY DISPUTE ABOUT THE AMOUNT MUST BE RESOLVED BY A HEARING (SECOND DEPT).
TOWN’S FAILURE TO REMOVE ICE AND SNOW IS NOT AN AFFIRMATIVE ACT OF NEGLIGENCE WHICH IS EXEMPT FROM THE WRITTEN NOTICE REQUIREMENT (SECOND DEPT).
DEFENDANT DRIVER ENTITLED TO SUMMARY JUDGMENT UNDER THE EMERGENCY DOCTRINE.
THE BANK’S COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1303 AND 1304 WAS NOT DEMONSTRATED IN THIS FORECLOSURE ACTION, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO THE BANK (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE BANK FAILED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION WITH... SERVICE ON AN UNAUTHORIZED FOREIGN CORPORATION DID NOT COMPLY WITH BUSINESS...