Maxon v. Woods Oviatt Gilman LLP

Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J), entered March 13, 2007 in a legal malpractice action. The order denied plaintiffs motion to disqualify defendant Woods Oviatt Gilman LLP from representing a nonparty witness at a subpoenaed deposition. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Plaintiff appeals from an order denying his motion in this legal malpractice action seeking to disqualify defendant law firm from representing a nonparty witness at a [1377] subpoenaed deposition. We affirm for reasons stated in the decision at Supreme Court. We add only that plaintiff has standing to bring this motion (see Vegetable Kingdom, Inc. v Katzen, 653 F Supp 917, 923 n 4 [ND NY 1987]), and that the court properly determined under the circumstances of this case that the nonparty witness, who had an existing attorney-client relationship with defendant law firm, was entitled to counsel of his own choosing (see generally Solow v Grace & Co., 83 NY2d 303, 310 [1994]; United States v Occidental Chem. Corp., 606 F Supp 1470, 1474 [WD NY 1985]). Present—Scudder, P.J., Martoche, Smith, Lunn and Pine, JJ.