Justice Scheinkman
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THIS BREACH of contract action arose out of an alleged oral agreement between plaintiff Castaldi and defendant Bakhshi to form a limited liability company to operate two luxury dance clubs. Castaldi was to provide construction management, labor, services and materials to Bakhshi and advance funds for work in return for 20 percent of ownership and 50 percent of profits. Plaintiffs alleged defendants never paid for material, labor or services provided in the renovation, nor provided them with their 20 percent interest or promised share of profits. On the eve of trial, defendants sought to disqualify plaintiff’s counsel, Keating, alleging he was a material witness to the key issues in the action, including if there was ever a valid contract. Keating argued he had no personal knowledge material to any issue in the action as he only drafted a proposed operating agreement as part of settlement efforts in 2005, well after the formation of the business venture and completion of the work. The court found defendants failed to demonstrate that Keating’s testimony was “necessary” and not cumulative of other testimony to be offered by defendants. As such, it denied the application to disqualify Keating.
