Opinion
October 9, 1990
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Ordered that the order is affirmed, without costs or disbursements.
We find that the plaintiff has satisfied its burden of establishing that the disqualification of Michael F. Erdheim as the defendant's attorney was proper (see, Code of Professional Responsibility DR 5-102 [A]). It is axiomatic that the roles of advocate and witness are inherently inconsistent (see, S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 444). In the case at bar, give the likelihood that Erdheim will be called to give pertinent testimony at trial concerning the circumstances surrounding the alleged malpractice of the plaintiff law firm and his subsequent motion on behalf of the defendant, we conclude that it would be improper for him to continue in the capacity of the defendant's attorney (see, Plotkin v. Interco Dev. Corp., 137 A.D.2d 671; Catania v. Lippman, 98 A.D.2d 826). Accordingly, we decline to disturb the determination of the trial court (cf., Frias v. Frias, 155 A.D.2d 585). Mangano, P.J., Thompson, Miller and Ritter, JJ., concur.