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Meyer v. Valverde Judge Underwood Meyer v. Valverde – ORDERED that the plaintiffs Risa Meyer and Alvin Meyer, as trustees of the Eric Wald Trust #2, Risa Meyer, as Executor of the Estate of Catalina Meyer, Eric Wald and Susan Wald’s motion for an order disqualifying Steven K. Meier, Esq., and the law firm of Schatz, Meier, Franzino & Scher as counsel for defendant Jorge Valverde is granted under the circumstances presented herein. This is an action arising out of a dispute as to the ownership of real property located at 439 Cobb Road, Water Mill, Southampton, Suffolk County, New York designated as Lot No. 4 on a certain map entitled “Map of Palak Realty Corp.” filed in the Office of the Clerk of Suffolk County on March 22, 1984, as Map 7716. Pursuant to the instant complaint, the plaintiffs seek the following relief: a judgment finding that the defendant has no legal, beneficial or equitable claim to the subject property; imposition of a constructive trust upon the subject property; reformation of the deed dated November 25, 1992, to reflect plaintiff Eric Wald Trust as owner of the subject property; a declaratory judgment resulting in a finding that plaintiff Eric Wald Trust has absolute and unencumbered title to the subject property; and a preliminary and permanent injunction maintaining the status quo pending the final determination of the instant action. The plaintiffs now move for an order, pursuant to Canons 4, 5, and 9 of the New York State Code of Professional Responsibility, disqualifying defendant’s counsel Steven K. Meir and the law firm of Schatz, Meier, Franzino, & Scher. “A party seeking to disqualify an attorney or a law firm, must establish (1) the existence of a prior attorney-client relationship and (2) that the former and current representations are both adverse and substantially related (Cardinale v. Golinello, 43 N.Y.2d at 295-296, 401 N.Y.S.2d 191, 372 N.E.2d 26; see also, T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268, rearg. denied 125 F.Supp. 233; Developments in the Law, Conflicts of Interest in the Legal Profession, 94 Harv L Rev 1244, 1318 ['Conflicts of Interest']).” (Solow v. W.R.Grace & Co., 83 N.Y.2d 303, 610 N.Y.S.2d 128, 130 [1994]). It is also well settled that “the Code of Professional Responsibility directs a lawyer to withdraw from his or her representation of a client during litigation if it appears that he or she ‘ought to be called as a witness’ (Code of Professional Responsibility DR 5-102[a] [22 NYCRR 1200.21(a)]; see, Code of Professional Responsibility DR 5-101[B] [22 NYCRR 1200.20(b) ]; see also, 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). In order to meet this threshold, however, the subject testimony must be ‘necessary’ (see, S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., supra, at 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647; see also, Moore & Moore Real Estate v. Aloi, 234 A.D.2d 683, 685, 650 N.Y.S.2d 450; Morgasen v. Federated Consultant Serv., 174 A.D.2d 656, 571 N.Y.S.2d 518). ‘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, at 446, 515 N.Y.S.2d 735, 508 N.E.2d 647 [citations omitted]).” (Bullard v. Coulter, 246 A.D. 2d 705, 706, 667 N.Y.S.2d 495 [3rd Dept. 1998]). In the matter at bar, the plaintiffs aver that the subject property was purchased by Catalina Meyer for her son, Eric Wald, title to be held by plaintiff Risa Meyer and the defendant as trustees of the Eric Wald Trust # 2. Defendant’s counsel represented the Trust in the negotiation that resulted in a contract of sale for the purchase of the subject property from a Robert Brophy. The contract was executed on July 18, 1992. Title did not close and the property was foreclosed by mortgagee John Saladino who subsequently entered into a contract of sale on November 9, 1992, with the defendant which did result in title being transferred by deed dated November 25, 1992, to the defendant individually. The plaintiffs submit that the purchase by the defendant of the subject property, pursuant to the November 9, 1992 contract, was for the benefit of the Eric Wald Trust #2 and title was never intended to be held for the individual defendant’s own benefit. It is apparent that under the circumstances presented herein, defendant’s counsel will be a witness and necessary testimony will be elicited. It is uncontroverted that Mr. Meier represented the plaintiffs in their initial attempt to purchase the property and clearly he may provide testimony as to the intent of all parties as it relates to the subsequent purchase of the property. As such, the plaintiff’s motion is granted. This matter is stayed thirty (30) days from service of this order with Notice of Entry to enable the defendant to obtain new counsel. This shall constitute the decision and order of the Court. So ordered.

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