Opinion
December 24, 1984
Appeal from the Supreme Court, Rockland County (Edelstein, J.).
Order entered October 13, 1983 affirmed, insofar as appealed from, without costs or disbursements.
From the very inception of this matter, it should have been "obvious" to plaintiff's counsel that he "ought to be called as a witness" and, therefore, he should not have accepted employment in the contemplated litigation (Code of Professional Responsibility, DR 5-101, subd [B]; see Hempstead Bank v Reliance Mtge. Corp., 81 A.D.2d 906; North Shore Neurosurgical Group v. Leivy, 72 A.D.2d 598). As defendants urged before Special Term, plaintiff's counsel will be called upon to testify regarding the plaintiff's physical condition after the assault took place, a particularly important issue inasmuch as plaintiff did not seek medical attention until more than 90 hours after the incident. In addition, defendant Reimo intends to call plaintiff's counsel as a witness with respect to giving supporting testimony as to his claim of self-defense and misidentification.
Because such disqualification should have been evident at the outset, there is no need for defendants to demonstrate that counsel's testimony would be adverse to his client (compare Code of Professional Responsibility, DR 5-101 with DR 5-102; Ocean-Clear, Inc. v. Continental Cas. Co., 94 A.D.2d 717). Titone, J.P., Mangano, Brown and Rubin, JJ., concur.