Opinion
March 31, 1994
Appeal from the Supreme Court, Nassau County (Joseph Saladino, J.).
In this action for divorce, the remedy for the parties' dissatisfaction with the IAS Court's awards of temporary maintenance, child support, custody, and occupancy, interim fees, an injunction and disclosure is a prompt trial (see, Shapiro v Shapiro, 163 A.D.2d 294, 296). Concerning the disqualification of defendant's attorney, we disagree with the IAS Court that because his discussion of the pendente lite award with the parties' children "created a situation where he may be called as a witness", the court was left with "no alternative but to disqualify." The incident of which plaintiff complains is not, as he claims, "central and essential" to the issue of custody but at most cumulative. That plaintiff intends to call defendant's attorney as a witness, and that the attorney's testimony may be prejudicial to defendant does not necessarily require disqualification (see, Code of Professional Responsibility DR 5-102 [B] [ 22 NYCRR 1200.21 (b)]; S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 443-445).
Concur — Murphy, P.J., Ellerin, Kupferman, Ross and Tom, JJ.