Opinion
November 20, 1978
In an action, inter alia, to declare plaintiffs to be half owners of Verion Audio Inc. (Verion), the defendants appeal from so much of an order of the Supreme Court, Westchester County, dated June 22, 1978, as denied their application to disqualify the plaintiffs' attorney of record. Action remitted to Special Term to hear and report on the issues raised in defendants' application to disqualify plaintiffs' attorney, and appeal held in abeyance in the interim. Special Term is to file its report with all convenient speed. The stay contained in the order of this court dated September 1, 1978 shall remain in effect pending determination of the appeal. The defendants have raised a legitimate question as to whether the plaintiffs' attorney of record should be disqualified because he had personally given legal advice to defendant Verion in the past, or because of his association with Joseph Winston, the attorney who incorporated Verion and who also may have acted as an adviser to the corporation (see, generally, Cardinale v Golinello, 55 A.D.2d 898, affd 43 N.Y.2d 288; New York State Bar Assn., Committee on Professional Ethics, Opn No. 395 [June 10, 1975]). We note that the defendants' appendix is inadequate. It fails to include that portion of the supporting affidavit that constitutes the application to disqualify plaintiffs' attorney, while including material dehors the record which this court may not consider. Hopkins, J.P., Martuscello, Latham and Cohalan, JJ., concur.