Burdett Radiology Consultants, P.C. v. Samaritan Hosp.

• Decision Date: 28 June 1990
• Citation: 557 N.Y.S.2d 988,158 A.D.2d 132
• Parties: BURDETT RADIOLOGY CONSULTANTS, P.C., et al., Respondents-Appellants, v. SAMARITAN HOSPITAL et al., Appellants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 988

557 N.Y.S.2d 988

158 A.D.2d 132

BURDETT RADIOLOGY CONSULTANTS, P.C., et al., Respondents-Appellants, v. SAMARITAN HOSPITAL et al., Appellants-Respondents.

Supreme Court, Appellate Division Third Department.

June 28, 1990.

Paul R. Engster (Michael J. Fields, of counsel), Albany, for respondents-appellants.

Pattison, Sampson, Ginsberg & Griffen, P.C. (Gerald H. Katzman and James E. Prout, of counsel), Troy, for appellants-respondents.

Before MAHONEY, P.J., and KANE, YESAWICH, LEVINE and MERCURE, JJ.

KANE, Justice.

This action revolves around a contract pursuant to which plaintiff Burdett Radiology Consultants, P.C. (hereinafter Burdett) and its president, plaintiff Eckart Schackow, were to provide "all radiological services" for defendant Samaritan Hospital (hereinafter Samaritan) and its executive vice-president, defendant Robert L. Kay. Problems arose when defendants allegedly acted outside the contract in hiring Rosa Santiago-Samson, who had been discharged by Burdett, to provide radiological services at Samaritan. Defendants eventually exercised an option in the contract to unilaterally terminate the agreement upon 180 days' written notice. Plaintiffs thereafter commenced this lawsuit alleging that Samaritan breached the contract, wrongfully terminated their employment, and, along with Kay, tortiously interfered with the contract.

Some time after issue was joined, plaintiffs brought a motion to disqualify the law firm representing defendants on the ground, inter alia, that attorneys for the firm would be called as witnesses. Defendants opposed the motion and cross-moved for an order dismissing the complaint for failure to state a cause of action and for plaintiffs' willful failure to provide agreed-upon disclosure. Supreme Court denied the motions and these cross appeals followed.

We are unpersuaded by plaintiffs' position that Supreme Court erred in denying their motion to disqualify defendants' counsel. Their argument focuses on three potential witnesses who are attorneys in the firm representing defendants: William Connors, who served on the Executive Committee of the Board of Directors of Samaritan; Lambert Ginsberg, who advised Burdett regarding Santiago-Samson's termination; and Gerald Katzman, who was involved in the drafting of the contract at issue herein. "[T]he Code of Professional Responsibility directs that a lawyer who ought to be called as a witness on behalf of his client shall withdraw from the conduct of the trial and his firm shall not continue representation" (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 444, 515 N.Y.S.2d 735, 508 N.E.2d 647 [emphasis in original]; see, Code of Professional Responsibility EC 5-9; DR 5-102). Whether an opposing party intends to call the attorney as a witness is not dispositive of whether the attorney ought to be called (see, L & W Supply Corp. v. Ruthman, 135 A.D.2d 877, 878, 521 N.Y.S.2d 877). A finding that the attorney's testimony is necessary is required, and the attorney's "relevant knowledge" or "involve[ment] in the transaction at issue" is not determinative (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., supra, 69 N.Y.2d at 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647; see, Plotkin v. Interco Dev. Corp., 137 A.D.2d 671, 673, 524 N.Y.S.2d 763). "Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence" (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., supra, 69 N.Y.2d at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647). In this case, Connors' membership on the Executive Committee is not unique and, there being three other members thereon, any testimony by Connors regarding the Executive Committee and the case at bar would be cumulative. Likewise, any testimony from Ginsberg regarding Santiago-Samson's discharge can be provided by Kay, under whose direction Ginsberg operated. We find, therefore, that in view of the "availability of other evidence" (id.), the testimony of Connors and Ginsberg is cumulative and unnecessary. We further note that, contrary to plaintiffs' argument, any dual representation by Ginsberg on behalf of Burdett and Samaritan in the Santiago-Samson matter cannot serve as a basis for disqualification inasmuch as Schackow apparently consented to the arrangement and there was no showing of actual conflict or impropriety ( see, Prodell v. State of New York, 125 A.D.2d 805, 806-807, 509 N.Y.S.2d 911; Matter of Hof, 102 A.D.2d 591, 593, 478 N.Y.S.2d 39). We also reject plaintiffs' contention that Katzman should be disqualified because of his involvement in creating the contract at issue. In our view, plaintiffs have failed to show that the resolution of the specific issues involved in defendants' alleged breach of the contract would require Katzman's testimony (see, S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., supra ). Accordingly, the denial of plaintiffs' motion to disqualify defendants' counsel should be...