Old Saratoga Square Partnership v. Compton

• Decision Date: 16 June 2005
• Docket Number: 95917.
• Citation: 798 N.Y.S.2d 743,2005 NY Slip Op 05137,19 A.D.3d 823
• Parties: OLD SARATOGA SQUARE PARTNERSHIP, Appellant, v. JOHN COMPTON, Defendant, and RICHARD DE VALL, Respondent.
• Court: New York Supreme Court — Appellate Division

19 A.D.3d 823

798 N.Y.S.2d 743

2005 NY Slip Op 05137

OLD SARATOGA SQUARE PARTNERSHIP, Appellant, v. JOHN COMPTON, Defendant, and RICHARD DE VALL, Respondent.

95917.

Appellate Division of the Supreme Court of the State of New York, Third Department.

June 16, 2005.

Appeals (1) from an order of the Supreme Court (Ferradino, J.), entered February 11, 2004 in Saratoga County, which, inter alia, granted a motion by defendant Richard De Vall to disqualify plaintiff's counsel from representing plaintiff, and (2) from an order of said court, entered October 7, 2004, which, inter alia, denied plaintiff's motion for leave to renew and/or reargue.

LAHTINEN, J.

Plaintiff is a partnership in which attorney Donna Wardlaw is a partner. Defendant John Compton (hereinafter defendant) and his son, Lee Compton, leased premises owned by plaintiff in the City of Saratoga Springs, Saratoga County, where they operated a bar. The lease was later assigned solely to Lee Compton, with defendant's notarized signature appearing as guarantor for the lease on a document executed the same day as the assignment. Lee Compton subsequently defaulted and allegedly cannot be found. Defendant asserted that the notarized signature on the guarantee was not his signature. Plaintiff commenced this action against defendant and Richard De Vall, the attorney who notarized defendant's signature on the guarantee. Prior to disclosure, De Vall moved for summary judgment dismissing the complaint and, alternatively, permission to amend his answer to assert a statute of limitations defense and for removal of Wardlaw as plaintiff's counsel. Defendant also moved for summary judgment. Supreme Court found that Wardlaw should be disqualified from representing plaintiff because she was an advocate-witness. All other relief requested by the parties was denied, as was the relevant portion of the subsequent motion by plaintiff to renew and/or reargue.^* Plaintiff appeals.

The advocate-witness rule disqualifies an attorney from representing a client when the attorney's "testimony is `necessary' and he or she `ought to be called as a witness'" (Skiff-Murray v Murray, 3 AD3d 610, 611 [2004], quoting Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21 (a)]). This rule does not, however, generally control when the attorney is also a litigant (see Walker & Bailey v We Try Harder, 123 AD2d 256, 257 [1986]; Oppenheim v Azriliant, 89 AD2d 522, 522 [1982], appeal dismissed 57 NY2d 955 [1982]; see also Gorovitz v Planning Bd. of Nantucket, 394 Mass 246, 475 NE2d 377 [1985]). Wardlaw is a partner in the plaintiff partnership and the other partners reportedly want her to represent the partnership. For many purposes, including the one implicated by this case, such a partnership is not an entity separate from the persons who compose it (see Walker & Bailey v We Try Harder, supra at 257; see also Dembitzer v Chera, 285 AD2d 525, 526 [2001]; cf. Matter of Nassau County Grand Jury, 4 NY3d 665 [2005] [while acknowledging the general principle, declining to extend it to law firm partners attempting to...