Pawarski v. Southeast Community Work Center, Inc.

Appellate Division of the Supreme Court of New York

Pawarski v. Southeast Community Work Center, Inc.

142 A.D.2d 1005, 530 N.Y.S.2d 418, 1988 N.Y. App. Div. LEXIS 15067

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

DecidedJuly 7, 1988

StatusPublished

This text of 142 A.D.2d 1005 (Pawarski v. Southeast Community Work Center, Inc.) 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

Pawarski v. Southeast Community Work Center, Inc., 142 A.D.2d 1005, 530 N.Y.S.2d 418, 1988 N.Y. App. Div. LEXIS 15067 (N.Y. Ct. App. 1988).

Pincite

Opinion

— Motion to disqualify appellant’s counsel denied. Cross motion to disqualify respondent’s counsel denied. Memorandum: The sole ground for respondent’s motion to disqualify appellant’s counsel from acting as counsel on this appeal, as stated in the moving papers, is "that his appellate representation of the plaintiff-appellant violates Disciplinary Rules 5-101 (B) and 5-102, Code of Professional Responsibility”. The purpose behind those rules, which prohibit an attorney from accepting employment in a matter where he knows or where it is obvious that he or a member of his firm should be called as a witness, "is to avoid the unseemly situation where an advocate must argue his own credibility before the trier of fact” (North Shore Neurosurgical Group v Leivy, 72 AD2d 598, 599). These rules do not apply here. The appeal is from an order granting summary judgment dismissing appellant’s complaint. Although appellant’s counsel provided an affidavit in opposition to the motion at Special Term, the issues on the appeal do not turn upon counsel’s credibility; thus, counsel will not be in the position of arguing his own credibility before us. As in any motion for summary judgment, we will not be called upon to resolve questions of credibility and fact, but only to determine whether questions of fact exist. Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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— Motion to disqualify appellant’s counsel denied. Cross motion to disqualify respondent’s counsel denied. Memorandum: The sole ground for respondent’s motion to disqualify appellant’s counsel from acting as counsel on this appeal, as stated in the moving papers, is "that his appellate representation of the plaintiff-appellant violates Disciplinary Rules 5-101 (B) and 5-102, Code of Professional Responsibility”. The purpose behind those rules, which prohibit an attorney from accepting employment in a matter where he knows or where it is obvious that he or a member of his firm should be called as a witness, "is to avoid the unseemly situation where an advocate must argue his own credibility before the trier of fact” (North Shore Neurosurgical Group v Leivy, 72 AD2d 598, 599). These rules do not apply here. The appeal is from an order granting summary judgment dismissing appellant’s complaint. Although appellant’s counsel provided an affidavit in opposition to the motion at Special Term, the issues on the appeal do not turn upon counsel’s credibility; thus, counsel will not be in the position of arguing his own credibility before us. As in any motion for summary judgment, we will not be called upon to resolve questions of credibility and fact, but only to determine whether questions of fact exist. Present—Dillon, P. J., Doerr, Boomer, Pine and Lawton, JJ.

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Bluebook (online)

142 A.D.2d 1005, 530 N.Y.S.2d 418, 1988 N.Y. App. Div. LEXIS 15067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pawarski-v-southeast-community-work-center-inc-nyappdiv-1988.

Opinion

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