Opinion
July 7, 1988
Present — Dillon, P.J., Doerr, Boomer, Pine and Lawton, JJ.
Motion to disqualify appellant's counsel denied. Cross motion to disqualify respondent's counsel denied. Memorandum: The sole ground for respondent's motion to disqualify appellant's counsel from acting as counsel on this appeal, as stated in the moving papers, is "that his appellate representation of the plaintiff-appellant violates Disciplinary Rules 5-101 (B) and 5-102, Code of Professional Responsibility". The purpose behind those rules, which prohibit an attorney from accepting employment in a matter where he knows or where it is obvious that he or a member of his firm should be called as a witness, "is to avoid the unseemly situation where an advocate must argue his own credibility before the trier of fact" (North Shore Neurosurgical Group v. Leivy, 72 A.D.2d 598, 599). These rules do not apply here. The appeal is from an order granting summary judgment dismissing appellant's complaint. Although appellant's counsel provided an affidavit in opposition to the motion at Special Term, the issues on the appeal do not turn upon counsel's credibility; thus, counsel will not be in the position of arguing his own credibility before us. As in any motion for summary judgment, we will not be called upon to resolve questions of credibility and fact, but only to determine whether questions of fact exist.