Miness v. Miness

Appellate Division of the Supreme Court of New York

Miness v. Miness

202 A.D.2d 362, 610 N.Y.S.2d 188, 1994 N.Y. App. Div. LEXIS 3090

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 31, 1994

StatusPublished

This text of 202 A.D.2d 362 (Miness v. Miness) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Miness v. Miness, 202 A.D.2d 362, 610 N.Y.S.2d 188, 1994 N.Y. App. Div. LEXIS 3090 (N.Y. Ct. App. 1994).

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Opinion

—Orders, Supreme Court, Nassau County (Joseph Saladino, J.), entered November 4, [363]*3631991 and on or about November 16, 1992, which, inter alia, granted various items of temporary relief and pretrial disclosure, and denied plaintiff’s motion for a downward modification of child support, respectively, unanimously affirmed, without costs. Order, same court and Justice, entered on or about March 27, 1992, which granted plaintiff’s motion to disqualify defendant’s attorney, unanimously reversed, on the law and the facts, and the motion denied, without costs.

In this action for divorce, the remedy for the parties’ dissatisfaction with the IAS Court’s awards of temporary maintenance, child support, custody, and occupancy, interim fees, an injunction and disclosure is a prompt trial (see, Shapiro v Shapiro, 163 AD2d 294, 296). Concerning the disqualification of defendant’s attorney, we disagree with the IAS Court that because his discussion of the pendente lite award with the parties’ children "created a situation where he may be called as a witness”, the court was left with "no alternative but to disqualify.” The incident of which plaintiff complains is not, as he claims, "central and essential” to the issue of custody but at most cumulative. That plaintiff intends to call defendant’s attorney as a witness, and that the attorney’s testimony may be prejudicial to defendant does not necessarily require disqualification (see, Code of Professional Responsibility DR 5-102 [B] [22 NYCRR 1200.21 (b)]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443-445). Concur — Murphy, P. J., Ellerin, Kupferman, Ross and Tom, JJ.

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—Orders, Supreme Court, Nassau County (Joseph Saladino, J.), entered November 4, [363]*3631991 and on or about November 16, 1992, which, inter alia, granted various items of temporary relief and pretrial disclosure, and denied plaintiff’s motion for a downward modification of child support, respectively, unanimously affirmed, without costs. Order, same court and Justice, entered on or about March 27, 1992, which granted plaintiff’s motion to disqualify defendant’s attorney, unanimously reversed, on the law and the facts, and the motion denied, without costs.

In this action for divorce, the remedy for the parties’ dissatisfaction with the IAS Court’s awards of temporary maintenance, child support, custody, and occupancy, interim fees, an injunction and disclosure is a prompt trial (see, Shapiro v Shapiro, 163 AD2d 294, 296). Concerning the disqualification of defendant’s attorney, we disagree with the IAS Court that because his discussion of the pendente lite award with the parties’ children "created a situation where he may be called as a witness”, the court was left with "no alternative but to disqualify.” The incident of which plaintiff complains is not, as he claims, "central and essential” to the issue of custody but at most cumulative. That plaintiff intends to call defendant’s attorney as a witness, and that the attorney’s testimony may be prejudicial to defendant does not necessarily require disqualification (see, Code of Professional Responsibility DR 5-102 [B] [22 NYCRR 1200.21 (b)]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 443-445). Concur — Murphy, P. J., Ellerin, Kupferman, Ross and Tom, JJ.

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Bluebook (online)

202 A.D.2d 362, 610 N.Y.S.2d 188, 1994 N.Y. App. Div. LEXIS 3090, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miness-v-miness-nyappdiv-1994.

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