Opinion
December 2, 1996.
In an action, inter alia, to declare the defendant's disclaimer of insurance coverage to be invalid, the plaintiff, its attorney Vincent A. DiBlasi, and his law firm Pizzitola DiBlasi, P. C, appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered April 23, 1996, which granted the defendant's motion to disqualify Vincent A. DiBlasi and Pizzitola DiBlasi, P. C, from any further representation of the plaintiff.
Before: Mangano, P.J., O'Brien, Pizzuto, Goldstein and Luciano, JJ.
Ordered that the order is modified, on the law, by striking the provision thereof which granted that branch of the motion which was to disqualify the firm of Pizzitola DiBlasi, P. C, from further representation of the plaintiff, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with one bill of costs to the appellants appearing separately and filing separate briefs.
In its complaint, the plaintiff asserted, inter alia, that the defendant insurer, on March 17, 1995, "agreed to undertake the cost of clean up operations under the terms of the aforementioned liability policy". The plaintiff acknowledges that this agreement was made orally, in a telephone conversation between Vincent A. DiBlasi and a representative of the defendant.
The Supreme Court properly disqualified Vincent A. DiBlasi from representing the plaintiff, since it is likely his testimony would be necessary to establish the existence of that alleged oral agreement ( 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 NY2d 437, 446; Brunette v Gianfelice, 171 AD2d 719).
However, the Supreme Court erred in disqualifying the firm of Pizzitola DiBlasi, P. C. A law firm may continue representing a client even if one of its attorneys ought to be called as a witness ( see, Talvy v American Red Cross, 205 AD2d 143, affd 87 NY2d 826), and there is nothing in the record to support a conclusion that any attorney from Pizzitola DiBlasi, P. C, other than Vincent A. DiBlasi, ought to be called as a witness.