LaSalle v. 1777 GC LLC
| Decision Date | 24 September 2021 |
| Docket Number | Index No. 19689/2019 |
| Citation | 155 N.Y.S.3d 292,73 Misc.3d 592 |
| Parties | Dawn LASALLE, et al., Petitioners, v. 1777 GC LLC, et al., Respondents, and New York City Department of Housing Preservation and Development (DHPD) & New York City Department of Buildings (DOB), Co-Respondents. |
| Court | New York Civil Court |
73 Misc.3d 592
155 N.Y.S.3d 292
Dawn LASALLE, et al., Petitioners,
v.
1777 GC LLC, et al., Respondents,
and
New York City Department of Housing Preservation and Development (DHPD) & New York City Department of Buildings (DOB), Co-Respondents.
Index No. 19689/2019
Civil Court, City of New York, Bronx County.
Decided on September 24, 2021
Becker & Poliakoff (Glenn Spiegel of counsel) for 1777 GC LLC and another, respondents.
Bronx Legal Services (Eugene Y. Chen of counsel) for petitioners.
New York City Department of Housing Preservation and Development (Emily Veale of counsel) for New York City Department of Housing Preservation and Development, respondent.
Shorab Ibrahim, J.
After oral argument held on September 13, 2021, the decision and order on this motion is as follows:
FACTUAL AND PROCEDURAL HISTORY
Petitioners are occupants at 1777 Grand Concourse, Bronx, NY. Their petition seeks, inter alia , an order to correct outstanding violations and a finding they have been harassed, as defined in the Housing Maintenance Code ("HMC").
On November 4, 2020, the court issued an order to correct the outstanding violations. Later, the matter was scheduled for a trial to decide petitioners’ remaining claims, including harassment.
On or about May 18, 2021, petitioners informed respondents they intended to call Gabriella Betances ("Betances"), an employee of petitioners’ counsels, as a trial witness.
Respondents now move to for an order prohibiting Betances from testifying at trial, arguing that she acted as an attorney for the petitioners.
§ 3.7(a) of The New York Rules of Professional Conduct ("RPC") (see 22 NYCRR 1200.0 ) provides that:
(a) 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 unless:
(1) the testimony relates solely to an uncontested issue;
(2) the testimony relates solely to the nature and value of legal services rendered in the matter;
(3) disqualification of the lawyer would work substantial hardship on the client;
(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or
(5) the testimony is authorized by the tribunal.
Respondents argue that Betances’ testimony would run afoul of § 3.7(a) because she works at or for petitioners’ counsels’
office, albeit not as an attorney. It is undisputed that Betances has visited the subject building and plans to testify about conditions she observed during those visits. As such, respondents posit she has personally involved herself in the litigation and must be disqualified from testifying. Further, respondents argue that there is no reason for Betances to testify as "any information likely to be elicited" from her "can easily be provided by other witnesses, including the petitioners’ themselves."
In opposition, petitioners argue that RPC § 3.7(a), the so called "advocate-witness" rule, provides guidance, but is not binding authority on this court and, in any event, the rule only applies to lawyers, "not to their firms’ agents or employees." Petitioners state that Betances is a paralegal and "no different from the office investigators that law firms typically call to testify to disputed facts." Petitioners add that the probative value and weight of Betances’ testimony should be left for the court to determine at trial.
In reply, respondents stress that Betances has a "vested interest in the case by the sheer virtue of her involvement in the representation of petitioners," and that she has "continuously acted as a substitute for petitioners’ attorneys. Thus, she ought to be disqualified under the advocate-witness rule.
DISCUSSION
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