ARONS v. CHARPENTIER

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Supreme Court, Appellate Division, Second Department, New York.

Marilyn ARONS, appellant, v. RosaLee CHARPENTIER, et al., respondents.

Decided: June 28, 2004

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, SANDRA L. TOWNES, WILLIAM F. MASTRO, and STEVEN W. FISHER, JJ. Richard A. Acito, Astoria, N.Y., for appellant. RosaLee Charpentier, Kingston, N.Y., respondent pro se and for respondents Barbara Mackey and Thomas Mackey.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated June 24, 2003, as denied that branch of her motion which was to disqualify the defendant RosaLee Charpentier as counsel for the defendants Barbara Mackey and Thomas Mackey.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 The plaintiff claims that disqualification of the defendant RosaLee Charpentier, as counsel for the defendants Barbara Mackey and Thomas Mackey, was warranted, pursuant to the Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21) based on the plaintiff's intention of calling counsel as a witness on a significant issue both at deposition and trial.   “Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary” (S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647).

In this case, the plaintiff failed to satisfy her burden of demonstrating that Charpentier's testimony was necessary (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., supra at 445-446, 515 N.Y.S.2d 735, 508 N.E.2d 647).   Therefore, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was to disqualify (see Olmoz v. Town of Fishkill, 258 A.D.2d 447, 684 N.Y.S.2d 611).

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