On July 26, 2023, the Second Department issued a decision in Kingston Check Cashing Corp. v. Nussbaum Yates Berg Klein & Wolpow, LLP, 2023 NY Slip Op. 03913, holding that the attorney-witness rule applies only when counsel’s testimony is necessary, not just useful, to the moving party’s case, explaining:
In order to disqualify counsel on the ground that he or she may be called as a witness, a party moving for disqualification must demonstrate that the testimony of the opposing party’s counsel is necessary to the moving party’s case, and that such testimony would be prejudicial to the opposing party. Merely because an attorney has relevant knowledge or was involved in the transaction at issue does not make that attorney’s testimony necessary. Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence.
Here, the defendant/third-party plaintiff/second third-party plaintiff, Nussbaum Yates Berg Klein & Wolpow, LLP (hereinafter Nussbaum), failed to demonstrate that the anticipated testimony of counsel for the plaintiff and the third-party defendant, Republic Bank of Chicago, would be necessary to Nussbaum’s case and also that such testimony would be prejudicial to the plaintiff. Accordingly, the Supreme Court did not improvidently exercise its discretion in denying that branch of Nussbaum’s motion which was to disqualify counsel for the plaintiff and the third-party defendant.
(Internal quotations and citations omitted).