Opinion
2001-04033
Argued April 12, 2002.
April 29, 2002.
In an action, inter alia, for the return of a down payment on a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated March 7, 2001, as denied their motion for summary judgment dismissing the complaint and granted that branch of the plaintiffs' cross motion which was to disqualify the defendants' attorney.
Norman E. McFarlane, North Babylon, N.Y., for appellants.
Robert H. Jewell, Mineola, N.Y. (R. Kenneth Jewell of counsel), for respondents.
Before: CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants' motion for summary judgment dismissing the complaint was properly denied since there are triable issues of fact (see CPLR 3212[b]; Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Milhim v. Almo Realty Corp., 188 A.D.2d 450).
The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' cross motion which was to disqualify the defendants' attorney since he is a necessary witness (see Code of Professional Responsibility DR 5-102[A] [ 22 NYCRR 1200.21(a)]; S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445-446; Korfmann v. Kemper Natl. Ins. Co., 258 A.D.2d 508; Hillcrest Owners v. Preferred Mut. Ins. Co., 234 A.D.2d 269; Brunette v. Gianfelice, 171 A.D.2d 719).
O'BRIEN, J.P., FRIEDMANN, H. MILLER and CRANE, JJ., concur.