Melton v. Urban League Institute of Rochester, N.Y., INC.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

__________________________________________

ANDREW MELTON,

Plaintiff, DECISION AND ORDER

24-CV-6248-EAW-MJP

v.

URBAN LEAGUE INSTITUTE OF

ROCHESTER, N.Y., INC. and

SEANELLE HAWKINS, individually,

Defendants.

___________________________________________

Pedersen, M.J. Plaintiff Andrew Melton (“Plaintiff”) commenced this action

on April 25, 2024, alleging that defendants Urban League Institute of Rochester,

N.Y., Inc. (“Urban League”)1 and Seanelle Hawkins, individually (collectively

“Defendants”) retaliated against him for whistleblowing activities in violation of New

York Labor Law § 740 and failed to pay him accrued vacation in violation of New

York Labor Law § 98-c. (Compl., ECF No. 1.) Further, Plaintiff asserts that

Defendants materially violated the whistleblowing policy requirements of New York

Not-for-Profit Corporation Law § 715-b. (Id.)

Presently before the Court is Plaintiff’s motion to disqualify the Law Offices of

Pullano & Farrow PLLC (“Pullano & Farrow”) as counsel for Defendants in this

1 Plaintiff refers to the “Urban League Institute of Rochester, N.Y., Inc.” as “ULR” in

his papers.

action pursuant to federal common law and Rule 3.7 of the New York Rules of

Professional Conduct. (Notice of Mot., Aug. 7, 2024, ECF No. 11.)

In reaching a decision on this motion the Court considered the parties’ briefing

(ECF Nos. 11, 19, 22), the in camera proceeding conducted on October 7, 2024, as well

as the transcript thereof (ECF Nos. 25, 26), and the parties’ post-hearing briefing

(ECF Nos. 31, 35, 36). For the reasons discussed below, the Court denies Plaintiff’s

motion to disqualify Pullano & Farrow as Defendants’ counsel (ECF No. 11).

BACKGROUND

The parties’ assertions in their pre-hearing briefing.

In his declaration, Plaintiff asserts that “Defendants employed me as Chief

Financial Officer from June 13, 2022 to November 8, 2022.” (Melton Dec. ¶ 1, Aug. 7,

2024, ECF No. 11-1.) He further indicates that “[o]n September 12, 2022, I sent a

report to Defendant Hawkins and the Board of Directors’ Finance Committee

detailing ten critical issues that I believed exposed ULR to liability and/or legal

action. I sent this in preparation for the Finance Committee’s meeting that was

scheduled to be held the next morning, September 13.” (Id. ¶ 3.) He contends that

thereafter Seanelle Hawkins, the President and CEO of Urban League, “began

phoning and emailing [him] . . . demanded information from [him], demanded that

[he] speak with her, demanded to see a plan of action, forbade [him] to attend the

Finance Committee meeting, which was scheduled for 11:30 a.m., and demanded that

[he] meet with her alone instead.” (Id. ¶ 4.) He thereafter “reported to the Board that

[he] believed this was retaliation for [his] reporting the critical issues to the Finance

Committee, and [he] asked that she stop contacting [him].” (Id.)

Plaintiff attended the Finance Committee meeting on September 13, 2022, but

asserts that Defendant “Hawkins then stated that [his] communications were hostile

and placed ULR ‘at risk’ . . . [and that] Hawkins then turned the conversation to a

discussion of firing [him].” (Id. ¶ 6.) Plaintiff asserts that he was locked out of Urban

League’s network that afternoon. (Id. ¶ 7.)

On September 15, 2022, Elizabeth Cordello, Esq., a member of Pullano &

Farrow, “left [Plaintiff] a voicemail and sent [him] an email stating that her firm was

asked to follow up with [him] about the concerns [he] raised earlier that week. She

then demanded a list of nine specific items unrelated to any of the concerns [he]

raised.” (Id. ¶ 8.) Ms. Cordello indicated in her follow-up email that “[o]ur office serves

as legal advisors to the Urban League of Rochester (“URL”). We have been asked by

URL’s Board to follow up with you to further review concerns you raised earlier this

week” and also requested nine categories of documents/information. (Pl.’s MOL at 3,

ECF No. 11-7 & Ex. B, Sept. 15, 2022, email from E. Cordello to A. Melton, ECF No.

11-4.)

On September 16, 2022, Ms. Cordello sent an email following up on requesting

the categories of documents and providing, in part,

[a]s you know, you have alleged unlawful retaliation against the CEO of

ULR. Because it is a complaint against the CEO specifically, the Board

determined it would be prudent to outsource the investigation of your

claims to our firm so that the claims may be fully vetted and addressed

appropriately. I look forward to speaking with you on Monday to get a

full account of the unlawful retaliation.

(Email from E. Cordello to A. Melton, Sept. 16, 2022, marked as Ex. 1 at Oct. 7, 2024,

evidentiary hearing.)

Plaintiff thereafter contends that:

The following Monday, September 19, 2022, I met by videoconference

with Cordello and made an audio recording of the meeting because her

September 15 email had already caused me to doubt that she would in

fact investigate the concerns I raised.2 During that meeting, Cordello

denied that she was investigating me, and explained that she was

investigating my complaint of retaliation as a “third party investigator”

standing in for Human Resources to ensure impartiality, given that my

complaint was against ULR’s CEO. She asked me questions about the

critical issues I reported to the Board and Hawkins’ retaliation. At the

end of the meeting, I stated that I was locked out of ULR’s network and

I believed that was further retaliation. She then informed me that ULR

had decided to place me on a paid leave of absence pending her

investigation, and she explained this by saying that I had asked for

Hawkins and Human Resources to stop communicating with me. I

objected to that, and she had nothing further to say, making me again

believe that she was really just following Hawkins’ instructions and not

really intending to investigate my concerns. The meeting lasted 30

minutes.

(Id. ¶ 9.)

2 The Court listened to the recording of the September 19, 2022, videoconference and

Ms. Cordello indicated as follows:

Just to be clear and as I’ve always said, the Board has engaged me to review

your complaint of retaliation, ah, you didn’t feel comfortable that HR was

impartial, understandably so because the complaint’s against the CEO. And

when you have a complaint of unlawful conduct pending against a CEO of a

non-for-profit organization it is typical that the Board would engage a third-

party investigator to review the claim. Ah, I requested those documents because

you’ve indicated a preference not to engage directly with the CEO. She had

requested that information. Rather than have you communicate directly with

her it was asked that I ask you for that information. But I am not here to review

your completion [sic] of that information or your performance. I am here to

review your complaint.

(Consiglio Dec. ¶ 4 and Ex. C (filed manually under seal).)

Plaintiff asserts that he

never heard another word about any investigation of my report of critical

issues, my complaint of retaliation, or Hawkins’ threat to fire me and

accusations against me. No one asked me for any further information.

Instead, Cordello fired me in a three-minute meeting on November 9,

2022, which I also recorded, after telling me that ULR concluded its

investigation and determined that “the employment relationship with

me wasn’t working.” That was the only explanation she gave me,

without a word about her own investigation or any findings of any

investigation. Not only did this confirm my belief that Cordello never

conducted an investigation, it also contradicted the procedures and

policies stated in the Employee Handbook, which was incorporated by

emphatic reference in my offer letter.

(Id. ¶¶ 10–11.)

In response to Plaintiff’s motion, Ms. Cordello submitted a declaration in which

she asserts that “[a]t all relevant times, I acted solely in the capacity of Defendants’

legal counsel [and that] [i]n or about September 2022, Defendants requested that I

communicate with Plaintiff on their behalf as their attorney due to Plaintiff’s refusal

to communicate directly with Defendants.” (Cordello Dec. ¶¶ 3–4, Aug. 29, 2024, ECF

No. 20.) She further indicates that as counsel for Defendants she “did investigate and

advise Defendants with respect to the claims raised by Plaintiff.3 Such advice and

counsel are attorney-client privileged.” Ms. Cordello also asserts that “[t]he quote

attributed to [her] in paragraph 11 of Plaintiff’s Declaration submitted in support of

his motion (‘the employment relationship with you isn’t working’) is partial and

misleading. (Filing No. 11-1, at CM/ECF p. 4.) . . . The full quote (as provided in

3 The Court is unclear about which “claims” Ms. Cordello is referring here, whether it

be the critical issues raised in the memo to the Finance Committee or Plaintiff’s claim for

retaliation, both, or neither of those.

Exhibit D to Plaintiff’s motion) is: ‘In continuance of the discussion that started with

you in late August, the Urban League has determined the employment relationship

with you isn’t working.’” (Id. ¶¶ 7–8.) Finally, Ms. Cordello stated that “[a]s indicated

in Exhibit D to Plaintiff’s motion, Plaintiff did not disagree with my statement that

the employment relationship ‘wasn’t working’ had first been communicated to him by

Defendants in late August, prior to my involvement and his Complaint.” (Id. ¶ 9.)

Langston McFadden, Esq., Defendants’ current counsel in this matter and also

a member of Pullano & Farrow, submitted a declaration in opposition to Plaintiff’s

motion to disqualify. He indicates that prior to the meeting Ms. Hawkins scheduled

for September 13, 2022, Ms. Hawkins asked Plaintiff for financial information in

connection with the meeting and “instead of receiving the requested financial

documentation . . . Defendant Hawkins was copied in on an email that provided a

memo Plaintiff submitted to the Board of Directors [that] outlined various concerns

Plaintiff had with Defendant Urban League and its management.” (McFadden Dec.

¶¶ 18, 21, 22, Aug. 29, 2024, ECF No. 21.) Since Plaintiff had not provided the

requested financial documents at the meeting on September 13th Defendant

Hawkins “asked Plaintiff to respond to the previous e-mails she had sent to him

requesting the financial documentation, and then dismissed Plaintiff from the

meeting . . . hoping Plaintiff would use the time to complete and submit the financial

documentation she had been requesting.” (Id. ¶ 26.)

Mr. McFadden further asserts that

As a result of Plaintiff’s hostility and refusal to respond to

communications from Defendants Hawkins, Defendant Urban League’s

Board engaged Pullano & Farrow to investigate Plaintiff’s claims. On

September 15, 2022, Defendants’ attorney, Elizabeth A. Cordello, sent

an email to Plaintiff advising that she was asked to follow up with

Plaintiff regarding his claim of retaliation. In this email, Elizabeth A.

Cordello requested information from Plaintiff, which Plaintiff refused to

provide. In an attempt to investigate Plaintiff’s retaliation claims, Ms.

Cordello scheduled a videoconference with Plaintiff for September 19,

2022.

(Id. ¶ 34.) He indicates that on September 19, 2024, Ms. Cordello met with Plaintiff

via teleconference “to discuss his claims of retaliation. In the meeting, Elizabeth

Cordello asked Plaintiff why he believed Defendant Hawkins had violated company

policies. Ms. Cordello also discussed with Plaintiff the memo he submitted to the

Board of Directors and Defendant Hawkins on the evening of September 12, 2022.

During the meeting, Plaintiff stated he was alleging retaliation stemming from his

belief that his memo constituted whistleblowing.” (Id. ¶¶ 35–36.) Also during the

meeting Ms. Cordello “inform[ed] Plaintiff that he was being placed on paid leave

pending the completion of an investigation of his complaint” and that she was

conveying this information on Urban League’s behalf because “Plaintiff refused to

have any interactions with Urban League employers or leadership.” (Id. ¶¶ 37–38.)

It was Defendant Hawkins’s decision to terminate Plaintiff after Urban League

conducted an “investigation into Plaintiff’s job performance . . . [because] he was not

completing his job duties as the Chief Financial Officer.” (Id. ¶¶ 39, 42.) Ms. Cordello

was not consulted nor involved in making the decision to terminate Plaintiff’s

employment and her “sole role as counsel for the company was to conduct an

investigation into Plaintiff’s claims of retaliation.” (Id. ¶¶ 40–41.) Finally, Mr.

McFadden asserts that “[a]t all times herein Elizabeth A. Cordello and Pullano &

Farrow have expressed themselves as counsel for Defendants” and “[a]t no time was

there any ambiguity as to the role of Pullano & Farrow as Defendants’ chosen

counsel.” (Id. ¶¶ 55, 57.)

Relevant testimony from the October 7, 2024, evidentiary hearing at which

Elizabeth Cordello, Esq. testified.

At the hearing Defendants’ counsel questioned Ms. Cordello about the nature

of her relationship with the Urban League and she testified as follows:

Q. Good morning, Ms. Cordello. Can you explain to the Court exactly who

hired you and for what purpose were you hired with respect to your

work at the Urban League?

A. Yes. So our firm has long been legal counsel to the Urban League of

Rochester, and with respect to this matter, the board of the Urban

League of Rochester engaged me with regard to this matter.

(Tr. of Oct. 7, 2024 Evidentiary Hearing 5:6–13, ECF No. 26.) The Court sought

clarification from Ms. Cordello regarding what she meant by “this matter” and she

testified that “Mr. Melton made a complaint about – several complaints about the

CEO Sean [sic] Hawkins, and the board asked me to see if there was any bearing [sic]

with regard to Seanelle Hawkins’ conduct.” (Id. 5:14–19.) She further testified that

she completed an investigation into “whether Seanelle Hawkins should be terminated

or if there is any merit to the allegations Mr. Melton made” and concluded that

Seanelle Hawkins did not need to be dismissed. (Id. 6:4–15; 7:3–11; 8:10–13.) She

stated that she was hired by the Board to investigate the allegations of the report

Plaintiff provided to the Board. (Id. 7:25–8:2; 8:23–9:3; 10:12–11:11.)

When further questioned by Plaintiff’s counsel as to why the Board hired her,

Ms. Cordello testified as follows:

Q. Then if I’m understanding you correctly, you were not investigating the

question of whether Ms. Hawkins had retaliated against Mr. Melton.

Am I understanding that correctly?

A. If true, if those allegations are true, then it might have been a question

as to what her motive was because prior to him submitting that report

she had decided to terminate him. So I guess that would have been a

secondary issue to look at if there was merit to what he was raising.

Q. Were you aware that he had told the board he believed that Ms.

Hawkins was retaliating against him for sending that report at the time

that you began your investigation?

A. I don’t recall. I’m not sure that I fully understand the question, but I

don’t think I – can you repeat the question?

Q. Sure. I’m trying to understand whether you were investigating a

retaliation claim by Mr. Melton.

A. I would say no because he -- he had already -- she had already made the

decision with respect to his employment, but like I said, if there was

merit to what he was saying and she was doing these things, then as a

secondary issue I’d have to look at whether that decision she had made

was also, you know, an attempt to blame someone else if you will or

something like that, but the board’s primary concern in that moment

was whether any of that was true and whether the CEO was engaging

in this conduct.

(Id. 10:16–11:11.)

She further testified regarding whether she was involved in the decision to

terminate Plaintiff’s employment as follows:

Q. During the course of your investigation, did you make any determination

as to whether Mr. Melton’s employment with the Urban League of

Rochester should be terminated?

A. No. It is my understanding that decision had been made prior -- just prior

to his complaint. I was looking at whether Seanelle Hawkins should be

terminated or if there is any merit to the allegations Mr. Melton made.

Q. And it’s my understanding that you communicated the subsequent

termination to Mr. Melton. Why was that?

A. Because he would not speak with anyone at the organization.

(Id. 7:3–16.) She later testified as follows:

Q. Okay. And Ms. Cordello, you said that the CEO for the

organization communicated to Mr. Melton before September 12

that he was going to be terminated; did I understand that

correctly?

A. You did.

Q. And how do you know that?

A. Because I think it’s in -- even in the papers, but at the time I

recall understanding that. I would have to go look at my notes in

the file to give you more particulars on that, but it was my

understanding that they had already communicated to him in

late August or maybe early September, I don’t know, that it

wasn’t working out.

(Id. 19:11–23.)

Post-Hearing Briefing

Plaintiff argues that Ms. Cordello’s testimony will be prejudicial to Defendants

because Ms. Cordello testified that “her investigation centered around whether the

ten Critical Issues revealed wrongdoing by Hawkins,” which raises the issue of

“whether Plaintiff’s allegation of retaliation was investigated at all before his

employment was terminated in November 2022.” (Consiglio Dec. ¶¶ 8–9, Nov. 6, 2024,

ECF No. 31, emphasis in original.) Similarly, Plaintiff contends that Ms. Cordello’s

testimony will prejudice Defendants because it “disavowed the documentary evidence”

that she was investigating the retaliation claim. (Id. ¶ 11.) Plaintiff further asserts

that Ms. Cordello’s testimony is prejudicial because Defendants did not provide any

evidence that Defendants communicated Plaintiff’s termination to him prior to his

submission of the critical issues memo to the Board. (Id. ¶ 10.) Additionally, Plaintiff

contends that harm to the integrity of the judicial system will result because of Ms.

Cordello’s testimony in which she “disavow[ed] [ ] the documentary evidence of her

owns statements to Plaintiff” and her

willingness to disavow the clear terms of the investigation that she

undertook, to present more argument than evidence during her

testimony, to present hearsay about Plaintiffs termination for which no

documentary evidence exists, and indeed, to fail to even identify a

specific actor as the source for that alleged hearsay.

(Id. ¶ 16.)

In opposition, Defendants contend that Plaintiff failed to meet the high burden

necessary to disqualify Pullano & Farrow. (Defs.’ Reply Mem. of Law at 1, ECF No.

35.) Defendants assert that since there has been no exchange of discovery “it is hard

to imagine how [Plaintiff’s] counsel can suggest with any certainty that Ms. Cordello’s

testimony, actions or inactions will be prejudicial to the interests of Defendants.” (Id.

at 3.) For this reason, Defendants argue that Plaintiff’s “vague and speculative

supposition” is not sufficient to satisfy the requirement of Murray v. Metro. Life Ins.

Co., 583 F.3d 173 (2d Cir. 2009) to specifically identify “the issues where prejudice

exists and how said prejudice would occur.” (Id. at 3, 4.) Finally, Defendants contend

that Plaintiff “failed to offer any specific examples as to how the judicial system will

suffer as a result of Ms. Cordello’s role in Plaintiff’s claims against Defendants.” (Id.

at 6.)

ANALYSIS

“The authority of federal courts to disqualify attorneys derives from their

inherent power ‘to preserve the integrity of the adversary process.’” Hempstead Video,

Inc. v. Inc. Vill. of Valley Stream, 409 F.3d 127, 132 (2d Cir. 2005) (quoting Bd. of

Educ. of City of N.Y. v. Nyquist, 590 F.2d 1241, 1246 (2d Cir. 1979)). Motions to

disqualify are generally viewed with disfavor, and “[w]hether to grant a motion to

disqualify is committed to the discretion of the court.” Wieme v. Eastman Kodak Co.,

No. 02–CV–6021L, 2004 WL 2271402, at *1 (W.D.N.Y. Sept. 7, 2004). In evaluating

a motion to disqualify, a court must balance “‘a client’s right freely to choose his

counsel’ against ‘the need to maintain the highest standards of the profession.’”

Hempstead Video, 409 F.3d at 132 (citing Gov’t of India v. Cook Indus., Inc., 569 F.2d

737, 739 (2d Cir. 1978)). Moreover, while the New York Code of Professional

Responsibility can “provide general guidance,” it is not binding on a federal court

assessing the merits of a motion to disqualify. Id. (“[N]ot every violation of a

disciplinary rule will necessarily lead to disqualification . . . .”).

A party moving for disqualification carries “a ‘heavy burden’ and must satisfy

‘a high standard of proof.’” Wieme, 2004 WL 2271402, at *1 (quoting Evans v. Artek

Sys. Corp., 715 F.2d 788, 791, 794 (2d Cir. 1983)). Indeed, a court faced with a

disqualification motion must recognize that “disqualification has an immediate

adverse effect on the client by separating him from counsel of his choice, and that

disqualification motions are often interposed for tactical reasons.” Bd. of Educ. of City

of N.Y., 590 F.2d at 1246. The Second Circuit has instructed that if there are doubts

about the matter, those doubts should be resolved in favor of disqualification.” Wieme,

2004 WL 2271402, at *2 (citing Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir.

1980), vacated on other grounds, 450 U.S. 903 (1981); Hull v. Celanese Corp., 513 F.2d

568, 571 (2d Cir. 1975).

Subsection (a) of [the New York Rules of Professional Conduct] provides, with

certain exceptions, that “[a] lawyer shall not act as an advocate before a tribunal in a

matter in which the lawyer is likely to be a witness on a significant issue of fact.” N.Y.

R. Prof’l Conduct § 3.7(a). Subsection (b), at issue here, is broader, as it addresses

imputation: “A lawyer may not act as an advocate before a tribunal in a matter if . . .

another lawyer in the lawyer’s firm is likely to be called as a witness on a significant

issue other than on behalf of the client, and it is apparent that the testimony may be

prejudicial to the client.” See N.Y. R. Prof’l Conduct § 3.7(b)(1).

“Because the courts must guard against tactical use of motions to disqualify

counsel, they are subject to fairly strict scrutiny, particularly motions” fall under

subsection 3.7(a), the witness-advocate rule. Lamborn v. Dittmer, 873 F.2d 522, 531

(2d Cir. 1989) (internal quotation and citation omitted)). Accordingly, the movant

“bears the burden of demonstrating specifically how and as to what issues in the case

the prejudice may occur and that the likelihood of prejudice occurring [to the witness-

advocate’s client] is substantial.” Id. (citations omitted). In this context “prejudice”

means testimony that is “sufficiently adverse to the factual assertions or account of

events offered on behalf of the client, such that the bar or the client might have an

interest in the lawyer’s independence in discrediting that testimony.” Id. (citation

omitted).

The showing of prejudice is required to determine whether the ultimate reason

for disqualification exists—harm to the integrity of the judicial system. Murray, 583

F.3d at 178. The Second Circuit has identified four risks that Rule 3.7(a) is designed

to alleviate: (1) the lawyer might appear to vouch for his own credibility; (2) the

lawyer’s testimony might place opposing counsel in a difficult position when he has

to cross-examine his lawyer-adversary and attempt to impeach his credibility; (3)

some may fear that the testifying attorney is distorting the truth as a result of bias

in favor of his client; and (4) when an individual assumes the role of both advocate

and witness, the line between argument and evidence may be blurred, thereby

undermining the jury’s ability engage in its fact-finding duties. Ramey v. Dist. 141,

Int’l Ass’n of Machinists & Aerospace Workers, 378 F.3d 269, 282–83 (2d Cir. 2004)

(internal citations and alterations omitted). The above-listed concerns are relevant

because they could undermine the integrity of the judicial process.

The present case falls under Rule 3.7(b) where the witness is not acting as trial

counsel. The Second Circuit has clearly provided that the four above-listed concerns

are therefore “absent or, at least, greatly reduced” in such a case. Ramey, 378 F.3d at

283 (citation omitted); see also A.B.A. Model Rules of Prof’l Conduct § 3.7 cmt. 5

(“Because the tribunal is not likely to be misled when a lawyer acts as advocate in a

trial in which another lawyer in the lawyer’s firm will testify as a necessary witness,

[Model Rule 3.7(b)] permits the lawyer to do so except in situations involving a conflict

of interest.”). The Second Circuit advises that disqualification by imputation should

be ordered sparingly, see Kubin v. Miller, 801 F. Supp. 1101, 1114 (1992), and only

when the four above-listed concerns are strongly implicated. In other words,

disqualification by imputation is only permitted where “the movant proves by clear

and convincing evidence that [A] the witness will provide testimony prejudicial to the

client, and [B] the integrity of the judicial system will suffer as a result.” Murray, 583

F.3d at 178.

The Court finds that Plaintiff has failed to demonstrate by clear and convincing

evidence that Cordello will provide testimony that will be prejudicial to Defendants

such that the integrity of the judicial system will suffer. First, based on Ms. Cordello’s

testimony at the October 7, 2024, evidentiary hearing, the Court believes that, at

trial, Ms. Cordello will vouch for her own credibility. The second risk— that the

lawyer’s testimony might place opposing counsel in a difficult position when he has

to cross-examine his lawyer-adversary and attempt to impeach his credibility—is not

applicable here because Plaintiff’s counsel will be cross-examining Ms. Cordello, not

Defendants’ trial counsel, Mr. McFadden. This weighs against disqualification.

The third risk—that there may be fear that Ms. Cordello could be distorting

the truth as a result of bias in favor of Defendants is a possibility here. However,

Plaintiff has not provided any clear and convincing evidence that this will happen.

As the facts presently stand, there is an email from September 16, 2022, and a

recorded meeting between Ms. Cordello and Plaintiff from September 19, 2022, in

which Ms. Cordello represents that she is investigating Plaintiff’s claim of retaliation.

However, Ms. Cordello also gave sworn testimony that the Board of Urban League

engaged her to look into the issues raised in Plaintiff’s “critical issues” memo and not

Plaintiff’s claim of retaliation. (Tr. 5:6–6:13; 10:4–11:1; 11:2–12:5; 24:21–25:20.) In

other words, the facts are not clear at this very early stage and Plaintiff cannot state

with certainty what testimony will be elicited from Ms. Cordello. Therefore, this

weighs against disqualification.

Finally, with respect to the fourth risk, Ms. Cordello is not assuming the role

of both trial advocate and witness, so any risk of her involvement blurring the line

between argument and evidence and confusing the jury is nil. Accordingly, this also

weighs against disqualification.

In addition, the information that Plaintiff seeks in his post-hearing briefing,

such as Ms. Cordello’s “final written report of her investigation” to demonstrate if

Defendants investigated Plaintiff’s claims of retaliation, and documentary proof “that

the decision to terminate Plaintiff’s employment preceded Plaintiff’s report to the

Board of ten Critical Issues and preceded Plaintiff’s allegation of retaliation”

demonstrate that Plaintiff’s motion is premature. (Consiglio Dec. ¶¶ 23–28, ECF No.

31.); Cassini v. Cnty. of Nassau, No. CV 22-1696 (DG) (AYS), 2023 WL 6958795, at *3

(E.D.N.Y. Oct. 20, 2023) (“where there has been only limited discovery and it is not

yet clear the extent to which an attorney’s testimony might be necessary or

prejudicial, numerous courts have found that motions to disqualify counsel are

premature.”) (citing Prout v. Vladeck, 316 F. Supp.3d 784, 809 (S.D.N.Y. 2018),

reconsideration denied, (citing Ross v. Blister, No. 09-cv-8666, 2009 WL 4907062, at

*3 (S.D.N.Y. Dec. 21, 2009) (collecting cases)); see also Gormin v. Hubregsen, No. 08

Civ. 7674, 2009 WL 508269, at *3 (S.D.N.Y. Feb. 27, 2009) (noting that prior to

discovery, “it is impossible to determine how significant [the attorney] might be as a

witness or whether he is likely even to be called as a witness; whether his testimony

would likely help or hurt his client; or whether his testimony would or would not be

cumulative of other witnesses.”). This information will likely be the subject of

discovery between the parties. The Court will not delve into the merits of the case on

the present motion for disqualification.

Based upon the forgoing, and as the facts exist at this moment, Plaintiff has

not carried his burden of demonstrating by clear and convincing evidence that Ms.

Cordello will provide testimony that is prejudicial to Defendants. Without proof of

this prejudice the Court cannot say that the integrity of the judiciary will be

questioned if Pullano & Farrow continues to represent Defendants in this matter.

CONCLUSION

For the reasons set forth above, the Court DENIES without prejudice

Plaintiff's motion to disqualify Pullano & Farrow as counsel for Defendants in this

action (ECF No. 11).

IT IS SO ORDERED.

DATED: February 26, 2025

Rochester, New York

MARK W. PEDERSEN

United States Magistrate Judge

17