This is a case where the plaintiff Eva Markus is suing to recover a payment of $10,000.00 made to a trial witness, her treating physician, Dr. Steven Touliopoulos, for his testimony. It appears that the case settled on the evening of the day before the trial. Dr. Touliopoulos had already cleared his schedule so that he could be available for trial. As stated at oral argument, the figure obtained by plaintiff in the underlying action was an unspecified amount, but at least in six figures. In the underlying action and in this present action, Markus is represented by the law firm of "Jaroslawicz & Jaros, Esqs." [hereinafter "Jaroslawicz"].

This is a motion by the third party defendant, Jaroslawicz, to dismiss the complaint of the defendant and third-party plaintiff Touliopoulos. The Court heard extensive oral argument on May 17, 2005, and even ordered further briefing, under a schedule where all additional submissions were due on June 15, 2005. Dr. Touliopoulos's counsel, George Magriples, Esq., complied, and provided a transcript of the EBT of Touliopoulos's office manager, but Jaroslawicz chose not to make further submissions.

First, the Court hereby gives Jaroslawicz and Touliopoulos notice, pursuant to CPLR 3211(c), of the Court's intention to convert the within motion to one for summary judgment under CPLR 3212. As provided below, papers by both Jaroslawicz and Touliopoulos shall be served simultaneously no later than October 3, 2005, and filed with the chambers of the undersigned, in room 511, of the court, so as to arrive no later than Oct. 4, 2005, at 3:00 p.m.

[*2]Second, as indicated by the Court, at the oral argument of May 17, this Court is troubled by the fact that Jaroslawicz is representing both itself and the plaintiff Eva Markus. The Jaroslawicz firm is an essential witness to this action, since it appears, from the unrefuted deposition transcript submitted on this motion, that its associate James I. Wolfe, Esq., made the arrangements to retain Dr. Touliopoulos.

The "advocate-witness rule," codified in Disciplinary Rule 5-102 of the Code of Professional Responsibility (22 NYCRR 1200.21) prohibits a lawyer from representing a client where it is evident that the attorney's testimony will be required in the trial of the action(see, Price v. Price, 289 AD2d 11 [1st Dept. 2001). The purpose of the advocate-witness rule is salutary and, indeed, important for the preservation of the adversary nature of our common law system. A lawyer arguing a matter or trying an action should be restricted to his crucial role as a spokesperson for his client. He or she should not be cast simultaneously in the dual role of arguing on behalf of a client and urging a court to believe him or her as credible (see, Skiff-Murray v. Murray, 3 AD3d 610 [3rd Dept 2004]).

As indicated, at the oral argument, and despite the absence of comment by counsel for Touliopoulos, this Court pointed out the situation to Jaroslawicz. On this point and on any other relevant issue, the Court invited further briefing. In response, Touliopoulos submitted the EBT transcript of his office manager, and the Jaroslawicz firm did not submit anything.

Instead, Jaroslawicz had submitted the reply affidavit of Wolfe, one of its attorneys. The fact that Wolfe's reply on this motion was in affidavit form, as opposed to an affirmation, represents a tacit admission of the essential nature of his testimony, no matter how impersonally he crafted his affidavit and his studied avoidance of any discussion of his retention of Touliopoulos as his expert for trial (see, EBT transcript of Yiannis Konstantinidis, of October 20, 2004, pp. 28-29).

Jaroslawicz even failed to send a copy of the present motion papers to Ms. Markus as judged by the affidavits of service. This decision by Jaroslawicz is especially troubling because its attorneys are well-experienced litigators, and this disregard of the advocate-witness rule was not an oversight, but was deliberateAccordingly, this Court, sua sponte, disqualifies the Jaroslawicz firm from representing Markus in this action (see, Skiff-Murray v. Murray, 3 AD3d 610, supra; Stober v. Gaba & Stober, P.C., 259 AD2d 554 [2nd Dept. 1999]; Richard L. v. Flora L., 2005 WL 1922331, 2005 NY Slip Op 50044 [Sup Ct Suffolk County 2005]), although that firm may, of course, represent itself.

This Court, accordingly, hereby orders that all activity, in this action, is stayed through and until August 29, 2005, so that plaintiff Markus may retain other counsel. In addition, the Chambers of the undersigned is mailing copies of this decision to both Jaroslawicz and Mr. Magriples. Jaroslawicz shall IMMEDIATELY mail a copy of all the papers received on this motion to date, including a copy of this order, to Markus, by certified mail, return receipt requested and shall furnish an affidavit of service attesting to this fact to the Chambers of the undersigned.

The submissions by any party, including Markus, pursuant to this order converting the within motion to one for summary judgment pursuant to CPLR 3211, shall be served simultaneously on or before October 3, 2005, and shall be filed with the Court on Oct. 4, 2005 - - not in the Clerk's office - - but with the Court Officer on the 5th floor or mailed to Chambers in [*3]Room 511 so as to arrive on Oct. 4, 2005, no later than 3:00 P.M. If this Court receives no additional submissions, it will assume that the parties are content to rely on their submissions to date and will render its decision.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Judge, Civil Court, Queens County

Dated: Jamaica, New York

July 21, 2005