Advocate–Witness Disqualification Narrowed; COVID-19 Filing Disruptions Are “Good Cause” to Extend CPLR 3212 Deadlines

Comprehensive Commentary on Schmidt v. Capone, 2025 NY Slip Op 06206 (2d Dept. Nov. 12, 2025)

Introduction

In Schmidt v. Capone, the Appellate Division, Second Department, clarified two frequently litigated procedural issues in New York civil practice: (1) when a litigant may disqualify opposing counsel under the advocate–witness rule, and (2) what constitutes “good cause” to extend the deadline for filing a summary judgment motion under CPLR 3212(a) in the wake of COVID-19 disruptions. The decision also addresses the lender-defendants’ inability to secure summary judgment where triable issues remain concerning whether a deed and mortgage were void ab initio due to alleged post-closing alteration.

The case arises from plaintiff John Schmidt Jr.’s allegation that his mother’s name (Marie Schmidt) was fraudulently inserted into the deed and mortgage after the closing of a Queens property. He seeks a declaration that both instruments are null and void. Defendants include Barbara M. Capone (individually and as trustee of the M. Schmidt Trust), Countrywide Home Loans, Inc. (as assignee of the mortgage), and Bank of America, N.A. (as servicer).

The Supreme Court (Queens County) had granted Capone’s motion to disqualify plaintiff’s counsel (Steven Greenfield, who represented Schmidt at the closing) and denied Countrywide and BANA’s request to extend time to move for summary judgment and, thereupon, for summary judgment. On appeal and cross-appeals, the Second Department modified: it denied disqualification, granted an extension of time to make the summary judgment motion, but ultimately denied the lender-defendants’ summary judgment on the merits. The court also noted Capone’s cross-appeal was deemed dismissed under 22 NYCRR 1250.10(a).

Summary of the Opinion

Disqualification reversed: The court held the movant (Capone) failed to show that plaintiff’s counsel’s testimony was both necessary and prejudicial; other witnesses could supply material facts, and the record suggested the motion was tactical given the delay in seeking disqualification.
Extension to move for summary judgment granted: Countrywide and BANA showed “good cause” for delay under CPLR 3212(a) given COVID-19-related suspensions of in-person filings and the plaintiff’s opposition to conversion to e-filing.
But summary judgment denied: On the merits (reached in the interest of judicial economy), the lender-defendants failed to make a prima facie showing that eliminated triable issues of fact on whether the deed and mortgage were void ab initio.
Costs awarded: As modified, the order was affirmed insofar as cross-appealed from, with one bill of costs to the plaintiff payable by Capone, Countrywide, and BANA.

Detailed Analysis

1) Precedents Cited and Their Role

The opinion synthesizes and applies several familiar strands of New York authority:

Right to chosen counsel and advocate–witness rule: The court reiterated that the right to one’s chosen counsel is a “valued right” not to be curtailed absent a “clear showing” that disqualification is warranted (Empire Med. Servs. of Long Is., P.C. v Sharma; Greenberg v Grace Plaza Nursing & Rehabilitation Ctr.; Gulino v Gulino). To disqualify counsel expected to be a witness, the movant must show both necessity and prejudice (Homar v American Home Mtge. Acceptance, Inc.; Lombardi v Lombardi).
Necessity versus mere relevance: The court relied on Kingston Check Cashing Corp. v Nussbaum Yates Berg Klein & Wolpow, LLP, and Gamez v Lopez for the principle that an attorney’s involvement or relevant knowledge does not, by itself, render the attorney’s testimony “necessary.” Necessity is gauged by the significance of the matter, the weight of the testimony, and the availability of other evidence.
Tactical disqualification concerns: The court cited Homar and Hele Asset, LLC v S.E.E. Realty Assoc. to infer that a delayed disqualification motion can be tactical—aimed at obtaining advantage or coercing settlement—supporting denial of the motion.
CPLR 3212(a) deadlines and good cause: Applying Brill v City of New York, the court noted that once a court-imposed deadline passes, a summary judgment motion must be denied as untimely unless the movant demonstrates “good cause.” Here, Souffrant v M & K Real Estate Assoc., LLC and Kuyenova v R & M Supermarket underscored that pandemic-related filing suspensions and e-filing complications can constitute good cause.
Appellate efficiency: The court elected to reach the merits of the summary judgment motion for judicial economy (Souffrant; Nisimova v Starbucks Corp.), rather than remand.
Void ab initio doctrine and prima facie burden: On the merits, the court drew on Deramo v Laffey and Williams v Mentore to emphasize that allegations of forgery or post-closing alteration can render instruments void ab initio, and therefore summary judgment cannot be granted where triable issues remain. Winegrad v New York Univ. Med. Ctr. provided the foundational principle that a motion must be denied if the movant fails to make a prima facie showing, irrespective of the opponent’s papers.
Appellate procedural rule: The court noted Capone’s cross-appeal was deemed dismissed under 22 NYCRR 1250.10(a), the rule governing dismissal of appeals not timely perfected.

2) The Court’s Legal Reasoning

a) Disqualification of Counsel

The Second Department began with the high threshold for disqualification: a litigant’s selection of counsel should not be disturbed absent a “clear showing” that both prongs of the advocate–witness rule are met—necessity and prejudice. The court underscored:

Necessity: Capone did not show that counsel’s testimony was strictly necessary. The record reflected the availability of other witnesses to testify as to the material facts surrounding the closing and the alleged post-closing alteration. That availability undercuts necessity; even highly relevant testimony is not “necessary” if the facts can be established otherwise.
Prejudice: Capone also failed to demonstrate that counsel’s potential testimony would be prejudicial to the plaintiff’s case. Without concrete prejudice, the second prong fails.
Tactical timing: Because Capone had long been aware of counsel’s involvement at the closing but waited to seek disqualification, the court inferred a tactical motive—seeking advantage or pressuring settlement—which further weighed against disqualification.

On these grounds, the court held the trial court “improvidently exercised its discretion” by disqualifying counsel.

b) Extension of Time to Move for Summary Judgment (CPLR 3212(a))

The parties had stipulation-based motion deadlines (May 29, 2020). Countrywide and BANA sought an extension in September 2021, well after that date, citing COVID-19 disruptions, specifically:

Suspension of in-person filing through executive and administrative orders responding to the pandemic; and
Plaintiff’s opposition to converting the case to the New York State Courts Electronic Filing (NYSCEF) system, which complicated filing logistics.

Under Brill, late summary judgment motions must show “good cause.” The court concluded that the lender-defendants carried this burden by tying their delay to systemic, pandemic-driven constraints and e-filing obstacles—reasons the Second Department has recognized as satisfactory in Souffrant and Kuyenova. Accordingly, the court modified the order to grant the extension.

c) Summary Judgment on the Merits

Choosing judicial economy over remand, the court reached the merits and denied the lenders’ motion. Countrywide and BANA bore the initial burden to make a prima facie showing that eliminated any triable factual disputes. They did not meet that burden because their submissions failed to eliminate triable issues as to whether the deed and mortgage were void ab initio—i.e., null from the outset due to alleged post-closing alteration.

Because the movants failed to establish a prima facie entitlement to judgment as a matter of law, Winegrad required denial “without regard to the sufficiency of the plaintiff’s opposition.” This leaves for trial the factual questions surrounding the authenticity and validity of the instruments.

3) Impact and Practical Implications

a) Advocate–Witness Motions

Narrower use of disqualification: The decision reinforces that disqualification will not be granted simply because an attorney participated in the transaction or possesses relevant knowledge. Movants must demonstrate the testimony is indispensable and prejudicial.
Timing matters: Delay in bringing a disqualification motion—especially when the basis was long known—may be viewed as tactical and weigh against disqualification.
Practice tip: Before moving to disqualify, identify why no other witness can supply the material facts, specify how the attorney’s testimony uniquely prejudices the opponent, and address timing to dispel any inference of gamesmanship.

b) CPLR 3212(a) Deadlines Post-COVID

Good cause grounded in pandemic disruptions: The Second Department confirms that COVID-19 administrative suspensions and e-filing hurdles can constitute “good cause” to extend summary judgment deadlines, even where a so-ordered stipulation fixed the deadline.
No automatic merits relief: Securing an extension only opens the door; movants must still carry their prima facie burden. Here, the lenders obtained the extension but lost on the merits.
Practice tip: Preserve a record showing concrete pandemic-related impediments and any e-filing barriers attributable to the case’s posture. Even with good cause, marshal robust merits evidence; an extension does not compensate for a thin factual record.

c) Real Property Instruments and the Void Ab Initio Doctrine

Heightened proof burdens for lenders/assignees: Where a borrower challenges the authenticity of a deed or mortgage—particularly alleging post-closing insertion or alteration of a party’s name—the void ab initio doctrine looms large. A forged or fraudulently altered instrument may be void from inception, leaving nothing to enforce.
Summary judgment hurdles: In such cases, lenders must affirmatively negate factual disputes about authenticity. Failing to eliminate triable issues—especially where multiple witnesses can address closing events—precludes summary judgment.
Practice tip: Assignees and servicers should assemble closing files, custodian-of-records affidavits with personal knowledge of record-keeping practices, notarization and recording proofs, and witness testimony to foreclose claims of alteration or forgery.

Complex Concepts Simplified

Advocate–Witness Rule: A lawyer should not act as both advocate and necessary witness at trial. A party seeking to disqualify opposing counsel must show the lawyer’s testimony is truly necessary (no one else can provide it) and that it would prejudice the opponent.
Necessity vs. Relevance: Even if a lawyer’s testimony is relevant or helpful, it is not “necessary” if other witnesses or documents can establish the same facts.
Prejudice: For disqualification, the lawyer’s testimony must harm the opposing party’s case in a meaningful way—not merely be inconvenient.
CPLR 3212(a) and “Good Cause”: New York sets strict deadlines for summary judgment motions. If you miss the deadline, the court can only consider your motion if you show a valid reason—“good cause”—for the delay. Systemic disruptions from COVID-19 and e-filing obstacles can qualify.
Prima Facie Burden on Summary Judgment: The moving party must first present evidence that, if uncontradicted, would entitle it to judgment as a matter of law. If it fails, the motion is denied without even examining the opponent’s papers.
Void Ab Initio: If a deed or mortgage is forged or materially altered, it may be considered void from the start—legally treated as if it never existed. That can defeat even an assignee’s attempt to enforce it.
Judicial Economy: An appellate court may decide an issue itself, rather than sending the case back to the trial court, to save time and resources when the record allows.
22 NYCRR 1250.10(a): A cross-appeal can be deemed dismissed if not timely perfected (processed) under the court’s procedural rules.

Conclusion

Schmidt v. Capone delivers two important procedural clarifications in the Second Department. First, it narrows the circumstances under which the advocate–witness rule will justify disqualification: mere involvement in the underlying transaction does not suffice; necessity and prejudice must be shown, and tactical delay will cut against disqualification. Second, it recognizes that pandemic-era filing suspensions and e-filing impediments may constitute “good cause” to extend CPLR 3212 deadlines, even long after a stipulation-imposed cutoff.

Substantively, the decision underscores the enduring power of the void ab initio doctrine in real property litigation. When allegations of post-closing deed or mortgage alteration are credibly raised, lenders and servicers face a steep summary judgment burden and must marshal evidence that eliminates triable issues. Here, Countrywide and BANA did not do so; their motion failed at the threshold.

The key takeaways are straightforward: disqualification is exceptional, not routine; COVID-19 disruptions can excuse lateness but not weak merits; and questions of instrument authenticity will generally be reserved for trial unless the proponent’s submissions conclusively resolve them. Together, these holdings promote fairness in attorney selection, flexibility in the face of systemic disruption, and rigor in the adjudication of alleged deed and mortgage defects.

Panel: Miller, J.P., Wooten, Taylor, and McCormack, JJ., concurring. Decision and Order dated November 12, 2025. Costs awarded to plaintiff against Capone, Countrywide, and BANA.

Advocate–Witness Disqualification Narrowed; COVID-19 Filing Disruptions Are “Good Cause” to Extend CPLR 3212 Deadlines — Commentary on Schmidt v. Capone (2025)