Opinion
Submitted April 22, 1999
June 7, 1999
In a matrimonial action in which the parties were divorced by judgment entered September 12, 1995, the plaintiff former wife appeals from an order of the Supreme Court, Nassau County (Winslow, J.), dated March 21, 1998, which (1) granted the defendant former husband's motion to disqualify her attorney, and (2), upon the granting of her cross motion to direct the defendant to pay to her $20,000 being held in escrow by the defendant's attorney, directed that interest be paid only at the rate of 9% per annum instead of $37 per day.
Allan S. Botter, Lake Success, N.Y. (Alexander Potruch of counsel), for appellant.
Carl G. Cohen, Carle Place, N.Y., for respondent.
DAVID S. RITTER, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the defendant's motion to disqualify the plaintiff's attorney and substituting therefor a provision denying the motion; as so modified, the order is affirmed, with costs to the plaintiff.
The parties were married for nine years. A stipulation of settlement dated July 26, 1995, was incorporated, but not merged, into the judgment of divorce. Subsequent to the entry of the divorce judgment, a "social relationship" developed between the plaintiff and the attorney who represented her in the divorce action. Thereafter, the same attorney instituted proceedings on behalf of the plaintiff, inter alia, to enforce the provision of the stipulation requiring the defendant to pay to her $20,000 held in escrow by the defendant's attorney plus interest thereon in the sum of $37 per day, and to punish the defendant for contempt based on his alleged violation of a "Stay Away" order requiring the defendant to stay away from the former marital residence where the plaintiff still resided. The plaintiffs attorney was a witness to this alleged violation of the stay away order and when it became apparent that his testimony would be received at a hearing on this issue, he withdrew as counsel. After the hearing court struck the attorney's testimony as irrelevant, the attorney again began to represent the plaintiff, prompting the defendant's motion to disqualify the attorney based on both the attorney's status as a witness and his relationship with the plaintiff. The Supreme Court granted the motion and directed the plaintiffs attorney to withdraw from the case. In connection with the plaintiffs attempt to obtain the $20,000 being held in escrow, the court directed that interest on the $20,000 be paid by the defendant at the rate of 9% per annum.
Disqualification of the plaintiff's attorney was not required under the circumstances. The hearing court struck the attorney's testimony as irrelevant and, in any event, the testimony would have been repetitive of the plaintiff's anticipated testimony and would not have been required on any other issue. Accordingly, the defendant has failed to satisfy his heavy burden of showing that withdrawal is required because the attorney's testimony is necessary to the proceeding ( see, Code of Professional Responsibility DR 5-101[B][C] [ 22 NYCRR 1200.20(b)(c)]; S S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437; Broadwhite Assocs. v. Truong, 237 A.D.2d 162; Moore Moore Real Estate v. Aloi, 234 A.D.2d 683). Under the circumstances of this case, we find that disqualification was not warranted.
Finally, we agree with the Supreme Court that the provision of the separation agreement governing the amount of interest payable on the $20,000 held in escrow requires interest to be paid at the rate of 9% per annum.
Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, dated March 21, 1998, to dismiss the appeal on the ground that the appeal lacks merit and is frivolous, and cross motion by the appellant for sanctions. By decision and order on motion dated January 21, 1999, the motion and cross motion were held in abeyance and were referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and cross motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion and cross motion are denied.
Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, dated March 21, 1998, inter alia, for leave to serve and file a supplement to the record on the appeal containing certain documents allegedly omitted from the record filed on the appeal, and cross motion by the appellant to strike the respondent's brief on the ground that it contains or refers to material which is dehors the record. By decision and order dated February 1, 1999, the motion was granted to the extent that the respondent was permitted to serve and file a supplement to the record containing the documents allegedly omitted from the record on appeal, and the Justices hearing the appeal were to determine whether the documents contained in the supplement to the record would be considered on the appeal as part of the record on appeal, and the motion was otherwise denied. The cross motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion and cross motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is
ORDERED that the motion is denied, and the supplement to the record filed by the respondent is stricken and has not been considered in the determination of the appeal; and it is further,
ORDERED that the cross motion is granted to the extent that the references to the supplemental record contained in the respondent's brief are stricken and have not been considered in the determination of the appeal, and the cross motion is otherwise denied.