Bizzarro v. Brognano

Appeal from an order of Supreme Court (Prior, Jr., J.), entered May 13, 1987 in Albany County, which, inter alia, granted the motion of defendant and third-party plaintiff to disqualify third-party defendants from representing plaintiff in this action.

The facts underlying this appeal are set forth in our prior decision ( 136 AD2d 861 ), in which we affirmed the denial of plaintiff and third-party defendant’s^[1] motion to dismiss defendant’s counterclaim and third-party complaint. Thereafter, defendant moved to disqualify third-party defendant from representing plaintiff on the ground that third-party defendant will necessarily be a witness on the trial of this case. Supreme Court granted the motion and this appeal followed.

Third-party defendant represented plaintiff in her matrimonial action before his suspension from the practice of law (see, Matter of Capoccia, 107 AD2d 888 , Iv denied 64 NY2d 606 ) and after his reinstatement. Defendant represented plaintiff during the term of third-party defendant’s suspension. As plaintiff’s allegations of defendant’s legal malpractice involve the status of the case before and after the period of suspension, it is obvious that third-party defendant must testify. Under such circumstances, third-party defendant cannot continue representing plaintiff (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 ; see also, Code of Professional Responsibility DR 5-102).