Opinion
November 17, 1988
Appeal from the Supreme Court, Albany County (Prior, Jr., J.).
The facts underlying this appeal are set forth in our prior decision ( 136 A.D.2d 861), in which we affirmed the denial of plaintiff and third-party defendant's 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.
As in the prior appeal herein, we shall refer to the two third-party defendants in the singular.
Third-party defendant represented plaintiff in her matrimonial action before his suspension from the practice of law (see, Matter of Capoccia, 107 A.D.2d 888, lv denied 64 N.Y.2d 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 N.Y.2d 437; see also, Code of Professional Responsibility DR 5-102).
Order affirmed, with costs. Mahoney, P.J., Kane, Casey, Yesawich, Jr., and Mercure, JJ., concur.