Opinion
September 29, 2000
Appeal from Order of Supreme Court, Monroe County, Stander, J. — Disqualify Counsel.
PRESENT: GREEN, J. P., PINE, HURLBUTT, KEHOE AND LAWTON, JJ.
Order unanimously affirmed without costs.
Memorandum:
Supreme Court properly denied that part of the motion of defendant Montana Mills Bread Co., Inc. seeking to disqualify John Parrinello, Esq., from acting as plaintiff's attorney in the instant action. Although Parrinello's partner is disqualified from representing plaintiff on the ground that he ought to be called as a witness on plaintiff's behalf ( see, Code of Professional Responsibility DR 5-102 [c] [ 22 NYCRR 1200.21 (c)]; Hillcrest Owners v. Preferred Mut. Ins. Co., 234 A.D.2d 269), there is no basis for concluding that the partner's testimony may be prejudicial to plaintiff ( see, Code of Professional Responsibility DR 5-102 [d] [ 22 NYCRR 1200.21 (d)]; Martinez v. Suozzi, 186 A.D.2d 378, 379).
The court also properly denied plaintiff's motion for summary judgment. Plaintiff failed to meet his burden of establishing his entitlement to judgment as a matter of law ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562).