ELIZABETH STREET INC v. John Doe, etc., Defendant. (2003)

Order, Supreme Court, New York County (Edward Lehner, J.), entered May 1, 2002, which, to the extent appealed and cross-appealed from as limited by the briefs, granted plaintiff's motion for a preliminary injunction barring defendants from transferring or encumbering the subject property, granted defendants' cross motion to disqualify plaintiff's counsel, and denied defendants' cross motion for summary judgment, unanimously affirmed, without costs.

 The motion court properly determined, based on plaintiff's counsel's deposition testimony, that counsel would likely be called by defendants and that his testimony would likely be prejudicial.   Indeed, it appears that counsel's testimony will be necessary, given its significance, weight and the lack of any other witness with counsel's knowledge of the essential facts (see Broadwhite Assocs. v. Truong, 237 A.D.2d 162, 162-163, 654 N.Y.S.2d 144).   Accordingly, defendant's cross motion for disqualification of plaintiff's counsel pursuant to Code of Professional Responsibility DR 5-102(d) (22 NYCRR § 1200.21[d] ) was properly granted (see generally Luk Lamellen U. Kupplungsbau GmbH v. Lerner, 167 A.D.2d 451, 452, 562 N.Y.S.2d 134).

 Defendants' cross motion for summary judgment was properly denied. The motion court has already held that issues of fact exist as to whether the parties intended to be bound by an alleged oral agreement for the sale of the subject property, and this Court has affirmed that decision (276 A.D.2d 295, 714 N.Y.S.2d 436).   In any event, the deposition testimony and documents to which defendants now point in their new motion for summary judgment establish no more than that the parties anticipated that a written contract would be executed.   This evidence does not establish, as a matter of law, that the parties did not intend to be bound absent such a writing.   “ ‘[T]he mere intention to commit the agreement to writing will not prevent contract formation prior to execution’ ” (id.,quoting Winston v. Mediafare Entertainment Corp., 777 F.2d 78, 80;  see also Matter of Mun. Consultants & Publs., Inc. v. Town of Ramapo, 47 N.Y.2d 144, 148-149, 417 N.Y.S.2d 218, 390 N.E.2d 1143).

Finally, the court properly granted plaintiff's motion for preliminary injunction to maintain the status quo (see Taft Partners Dev. Group v. Drizin, 268 A.D.2d 347, 700 N.Y.S.2d 833;  Bd. of Mgrs. of the 235 E. 22nd St. Condominium v. Lavy Corp., 233 A.D.2d 158, 649 N.Y.S.2d 668).