Appeal from an order of the Civil Court of the City of New York, Richmond County (Philip S. Straniere, J.), entered August 6, 2007. The order granted the motion by defendants Barbara Rose Dalessio a/k/a Barbara Ross, Peter C. Diorio, Edythe Dagostino a/k/a Edythe Dalessio and Nicholas Guzzone to have plaintiff's counsel

disqualified to the extent of ordering counsel to appear for a deposition to resolve factual issues raised on the motion.

Order reversed without costs and motion by defendants Barbara Rose Dalessio a/k/a Barbara Ross, Peter C. Diorio, Edythe Dagostino a/k/a Edythe Dalessio and Nicholas Guzzone to have plaintiff's counsel disqualified denied. [*2]

Defendants Barbara Rose Dalessio a/k/a Barbara Ross, Peter C. Diorio, Edythe Dagostino a/k/a Edythe Dalessio and Nicholas Guzzone moved to disqualify plaintiff's counsel on the ground that he is a necessary witness. The lower court granted said defendants' motion to the extent of ordering counsel to appear for a deposition. We find that the moving defendants failed to demonstrate that plaintiff's attorney's testimony is necessary (see Code of Professional Responsibility DR 5-102 [22 NYCRR 1200.21]; Zutler v Drivershield Corp., 15 AD3d 397 [2005]), and that the court erred in ordering his deposition (cf. Matter of Cavallo, 20 Misc 3d 219 [Sur Ct, Richmond County 2008]).

We note that the order requiring plaintiff's attorney to appear for a deposition is appealable as of right since it affects a substantial right (see Cooke v Laidlaw Adams & Peck, 126 AD2d 453 [1987]; Grand Cent. Art Galleries v Milstein, 89 AD2d 178 [1982]; see also Lightening Park v Wise Lerman & Katz, 197 AD2d 52, 54 [1994]; Matter of Cavallo, 20 Misc 3d 219 [2008], supra).

Accordingly, the order is reversed and the motion is denied in its entirety.

Golia, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: October 30, 2008