Opinion
April 13, 1987
Appeal from the Supreme Court, Nassau County (Molloy, J.).
Ordered that the board's appeal from the order dated December 20, 1985 is dismissed, without costs or disbursements, as that order was superseded by the order dated February 13, 1986, made upon reargument; and it is further,
Ordered that the order dated February 13, 1986 is affirmed, insofar as appealed from by the board, without costs or disbursements; and it is further,
Ordered that, upon the application of the plaintiffs, their cross appeal from the order dated December 20, 1985 is withdrawn, without costs or disbursements.
The underlying action herein was commenced by the plaintiffs against the board and the defendant Great Neck Teachers Association, Inc., inter alia, to recover damages for breach of contract, and fraud (see, Hoerger v Board of Educ., 98 A.D.2d 274; see also, Hoerger v Board of Educ., 127 A.D.2d 88). Jerome Ehrlich, a member of the law firm which was defending the board in the underlying action, was the chief labor negotiator for the board, and executed, on its behalf, agreements with three individual teachers which are the subject of the underlying action. Ehrlich's personal knowledge and involvement in these crucial events made it obvious from the inception of this action that he "ought to be called as a witness" (Code of Professional Responsibility DR 5-101 [B]; Presser v Spiegel Sons Oil Corp., 106 A.D.2d 560; Hempstead Bank v Reliance Mtge. Corp., 81 A.D.2d 906; North Shore Neurosurgical Group v Leivy, 72 A.D.2d 598).
It is further apparent that Ehrlich's participation in the relevant transactions would place him "`in circumstances where an unfavorable inference might be drawn from his failure to appear'" (see, Pulichino v Pulichino, 108 A.D.2d 803; Hempstead Bank v Reliance Mtge. Corp., supra). Finally, we are not persuaded by the argument that disqualification would work a hardship upon the board. Accordingly, Special Term did not error when it disqualified the board's law firm. Mangano, J.P., Lawrence, Weinstein and Eiber, JJ., concur.