—[*1] Davidoff Malito & Hutcher LLP, New York (Larry Hutcher of counsel), for appellant.

Tofel & Partners, LLP, New York (Lawrence E. Tofel of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered September 4, 2008, which, insofar as appealed from, denied defendant's motion to disqualify plaintiff's attorney, unanimously affirmed, with costs.

Disqualification for violation of Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21), which requires withdrawal by counsel if it appears that he will be called as a witness, was properly denied in the absence of a showing that the testimony of plaintiff's attorney will be necessary to establish the claim or prejudicial in the event the attorney is called (see Kirshon, Shron, Cornell & Teitelbaum v Savarese, 182 AD2d 911 [1992]). Concur—Tom, J.P., Andrias, Nardelli, Catterson and Moskowitz, JJ.