Material Witness Disqualification

The New York Appellate Division for the First Judicial Department dismissed an attempt to appeal a disqualification order

Plaintiffs have already appealed a prior order determining that Parker Waichman was disqualified under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7(b) from representing intervenor plaintiffs in this action, as a partner of that firm was to be called as a material witness. This Court affirmed the order, and both this Court and the Court of Appeals denied leave to appeal (see Matter of Diet Drug Litig., 180 AD3d 483, 483 [1st Dept 2020], lv denied 36 NY3d 942 [2020]). As a result, since there has been no new evidence discovered after the prior order or any change in the applicable law, resolution of the issue on the prior appeal constitutes the law of the case and forecloses reexamination of the issue (see Kenney v City of New York, 74 AD3d 630, 630-631 [1st Dept 2010]). As Parker Waichman was disqualified from representing plaintiffs in any capacity, it does not have standing to bring the appeal and therefore, the appeal must be dismissed.

(Mike Frisch)