Opinion
January 21, 1997.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about April 29, 1996, which denied defendant Solomon Antar's motion for partial summary judgment dismissing the complaint as against him, and denied defendant's motion to disqualify plaintiffs counsel, and order of the same court and Justice, entered July 3, 1996, which denied defendant's motion for reconsideration, unanimously affirmed, with costs.
Before: Wallach, J. P., Nardelli, Tom, Mazzarelli and Andrias, JJ.
Defendant moved for partial summary judgment on the ground that a consent judgment agreed to by plaintiff in Federal District Court established that the marital property, which plaintiff claims is the measure of her damages in this action for fraud, was itself the product of fraud. The Federal consent judgment related to conduct which occurred after September 13, 1984, whereas the marital estate was measured as of on or about May 15, 1984 (Domestic Relations Law § 236 [B] [1] [c]). Moreover, the consent judgment, by its terms, preserved plaintiffs right to pursue this action and did not establish that the property here at issue was obtained illegally.
Defendant's motion for "reconsideration", which we deem one for renewal pursuant to CPLR 2221, was properly denied. Defendant Eddie Antar's guilty plea concerned his actions beginning before the public offering of Crazy Eddie stock in September 1984, and continuing through 1987. It did not establish that plaintiffs and Eddie Antar's marital property as of on or about May 15, 1984 was illegally obtained.
Defendant's motion to disqualify plaintiffs counsel was properly denied. The test for disqualification based on the "lawyer-witness" rule is whether the attorney "'ought to be called'", not whether his adversary intends to call him ( Lefkowitz v Mr. Man, 111 AD2d 119, 121, appeal dismissed 65 NY2d 1053). Defendant did not demonstrate that plaintiffs counsel ought to be called as a witness in this action.