Opinion
595N
March 26, 2002.
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 affirmed, without costs.
MILTON M. WITCHEL, for plaintiffs-respondents.
FRANCIS CARLING, for defendant-appellant.
Before: Nardelli, J.P., Mazzarelli, Buckley, Ellerin, Lerner, JJ.
Under all of the circumstances of this case (see, York v. York, 285 A.D.2d 500), disqualification of the individual attorney was a proper exercise of discretion (cf., Bullard v. Coulter, 246 A.D.2d 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 A.D.2d 426, 2002 N.Y. App. Div. LEXIS 266). Therefore, on the present record and in light of defendant-appellant's stated position that the matter will not be ripe for a motion to dismiss until it takes plaintiff's deposition, plaintiffs have sustained their burden (see, NYK Line v. Mitsubishi Bank, 171 A.D.2d 486, 487) of showing that the attorney's testimony on his own client's behalf will be necessary (cf., Metro. Transp. Auth. v. 2 Broadway LLC, 279 A.D.2d 315, 315-316). Although plaintiffs did not cite subdivision "c" of Disciplinary Rule 5-102 ( 22 NYCRR 1200.21) in their motion, the court properly corrected the discrepancy and relied on that subdivision (see, Matter of Estate of Burdick, 283 A.D.2d 920). Further, under the particular circumstances of this case, disqualification is not premature (cf., Raul Cleaners Corp. v. Kim's Landmark Cleaners Corp., 210 A.D.2d 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,William v. Griffin Co. v. Sperling S.S. Trading Corp., 28 A.D.2d 976), and limitations are disfavored (see, Matter of Estate of Welsh, 24 A.D.2d 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,Estate of Welsh, 24 A.D.2d, supra, at 987).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.