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Emile v. Big Bros./Big Sisters of New York City, Inc.

292 A.D.2d 297 Court N.Y. App. Div. Decision date 2002-03-26 English

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p. 297
Kim Emile et al., Respondents, v Big Brothers/Big Sisters of New York City, Inc., Appellant, et al., Defendant.
[739 NYS2d 260]

Order, Supreme Court, Bronx County (Howard Silver, J.), entered September 5, 2001, which, to the extent appealed from as limited by the brief, granted plaintiffs’ motion for an order disqualifying defendant-appellant’s counsel to the extent of disqualifying Francis Carling, Esq., individually, and which granted defendant-appellant’s cross motion to compel plaintiffs to appear for depositions only to the extent of permitting defendant-appellant to ask those questions necessary to enable it to frame a motion to dismiss, unanimously modified, on the law and the facts, to vacate the provision that the pre-answer deposition of plaintiff “shall be limited to those questions necessary to enable Big Brothers/Big Sisters to frame a motion to dismiss,” and otherwise affirmed, without costs.

Under all of the circumstances of this case (see, York v York, 285 AD2d 500 ), disqualification of the individual attorney was a proper exercise of discretion (cf., Bullard v Coulter, 246 AD2d 705 , 706-707). Plaintiff employee’s recounting of the meeting, which only she and the individual attorney attended, would support her allegations of hostile environment sexual harassment (cf., Pascal v Amscan, Inc., 290 AD2d 426 ). Therefore, on the present record and in light of defendant-appellant’s stated

p. 298
position that the matter will not be ripe for a motion to dismiss until it takes plaintiffs deposition, plaintiffs have sustained their burden (see, NYK Line v Mitsubishi Bank, 171 AD2d 486 , 487) of showing that the attorney’s testimony on his own client’s behalf will be necessary (cf., Metropolitan Transp. Auth. v 2 Broadway, 279 AD2d 315 , 315-316). Although plaintiffs did not cite subdivision (c) of Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21) in their motion, the court properly corrected the discrepancy and relied on that subdivision (see, Matter of Burdick, 283 AD2d 920 ). Further, under the particular circumstances of this case, disqualification is not premature (cf., Raul Cleaners Corp. v Kim’s Landmark Cleaners Corp., 210 AD2d 144 ).

The motion court should not, however, have placed limitations on defendant’s pre-answer deposition of plaintiff (see, CPLR 3106 [a]). Such discovery is available as of right (see, Griffin & Co. v Sperling S.S. & Trading Corp., 28 AD2d 976 ), and limitations are disfavored (see, Matter of Welsh, 24 AD2d 986 , 987). The limitation imposed in this case is problematically vague. If questioning of plaintiff becomes abusive, CPLR 3103 (a) provides plaintiffs with a sufficient remedy (see, Matter of Welsh, 24 AD2d, supra at 987). Concur — Nardelli, J.P., Mazzarelli, Buckley, Ellerin and Lerner, JJ.

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