Martinez v. Suozzi

186 A.D.2d 378, 588 N.Y.S.2d 175, 1992 N.Y. App. Div. LEXIS 11188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 6, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered on or about April 9, 1992, which, insofar as appealed from, denied plaintiffs motion to disqualify defendants-respondents’ attorneys, unanimously affirmed, without costs.

In this action for breach of contract, fraud, and mutual mistake of fact in the sale of real property, plaintiff claims that when he purchased the building in 1987, he was under the misapprehension that all of the apartments therein were rent stabilized, when in fact some were rent controlled (see, Martinez v Suozzi, 173 AD2d 411). Defendants-respondents were represented at the 1985 closing in which they bought the property by the father and partner of the attorney appearing for them in this action. During disclosure, a nonappealing codefendant represented that the father had received all of the leases for the building at the 1985 closing. Stating an intention to call the father as a witness, plaintiff moved to disqualify the entire firm.

Even assuming, arguendo, that plaintiff has shown the testimony of the father to be "necessary” (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437), 1990 amendments to Code of Professional Responsibility DR 5-102 (B) (22 NYCRR 1200.21 [b]) require withdrawal of a lawyer when another lawyer in his or her firm may be called as a witness only if it is apparent that the testimony may be prejudicial to the client. Thus, plaintiff was required to identify the projected testimony of the witness and show that it would be so adverse to the factual assertions or account of events offered on behalf of the client as to warrant his disqualification (Luk Lamellen u. Kupplungsbau GmbH v Lerner, 167 AD2d 451, 452-453). This plaintiff does not even purport to do.

Nonetheless, we do not find that the denial of sanctions was an abuse of discretion (see, Intercontinental Credit Corp. Div. v Roth, 184 AD2d 251). Concur — Ellerin, J. P., Wallach, Ross and Kassal, JJ.