The following papers have been read on this motion:

Notice of Motion, dated 12-13-10..................................................1 [*2]

Affidavit in Opposition, dated 1-5-11...........................................2

Notice of Cross Motion, dated 1-5-11...........................................3

Reply Affidavit, dated 1-11-11......................................................4

Affidavit in Opposition, dated 1-11-11.........................................5

Memorandum of Law , dated 1-11-11..........................................6

Reply Affirmation, dated 1-11-11.................................................7

Reply affirmation, date 1-19-11....................................................8

The motion of defendant-husband (Seq. 002) to modify the pendente lite award previously granted by Order dated September 7, 2010 (Justice Brown) (the Order) is denied. The cross motion (Seq. 003) of plaintiff-wife to (i) disqualify defendant's attorney Jeffrey S. Stephens, (ii) set aside a certain prenuptial agreement dated November 30, 1989 (the Agreement), (iii) compel the deposition of non-party Maureen Leming, daughter of defendant-husband and (iv) obtain a further award of attorney fees pendente lite to plaintiff-wife, is granted with respect to the disqualification of Jeffrey S. Stephens, Esq.(Stephens), and to the extent that plaintiff-wife is awarded pendente lite attorneys fees of an additional $10,000.00. In all other respects, the cross motion is denied. Except as set forth herein, all other requests for relief made by either party are denied. The action is stayed for a period of 30 days after service upon defendant and Stephens of a copy of this decision and order in order to afford defendant opportunity to engage new counsel CPLR §321(c). However, this stay does not apply to defendant's obligation to pay plaintiff the ordered pendente lite counsel fees.

The parties were married on December 30, 1989 and have an emancipated daughter who was born (according to defendant's attorney) on xx/xx/xxxx. Plaintiff moved for pendente lite relief in July 2010 and the Order issued on September 7, 2010. Admittedly there was no mention of the Agreement in any papers submitted in the summer of 2010, in the Preliminary Conference Order dated July 20, 2010, in plaintiff's Statement of New Worth dated June 9, 2010 or in a signed Uniform Information Sheet dated July 2010. Pleadings have not been submitted to the Court.

In his motion, defendant-husband alleges that prior to the marriage, the parties signed the Agreement which he had been unable to locate until just prior to the making of his motion and which now forms the basis of modifying the Order so as to deny plaintiff pendente lite maintenance.

Defendant's counsel Stephens has submitted an affirmation on this issue in which he avers that he prepared the Agreement, negotiated changes with an unidentified attorney representing the plaintiff and that he only recently found it in "storage". Stephens has also represented defendant on numerous other matters for many years, including a transaction in which defendant leased a home in Freeport coincident with the purchase thereof by defendant's daughter Leming and her husband. Stephens also does legal work for the Sky [*3]Action Club (the Club) which defendant identifies as his employer and plaintiff claims is a marital asset.

Defendant admits that until this motion, he never raised the issue of the agreement because he was not able to find it. The Agreement does not mention that at the time of its execution, the child of this union had already been born; it does, however, significantly limit plaintiff's rights in the event the marriage ends.

The same presumption of legality attaches to a prenuptial agreement as it does to any contract. Darrin v. Darrin, 40 AD3d 1391 (1st Dept. 2007). Strong public policy favors individuals who order and decide their own interests through contractual arrangements, including prenuptial agreements. 92 NY2d 341 (1998); Strong v. Dubin, 48 AD3d 232 (1st Dept. 2008).

Such agreements are, however, susceptible of review where circumstances indicate that they may be unconscionable. Bloomfield v. Bloomfield, 97 NY2d 188 (2001). In the present case, the wife raises that issue by asserting that she was pressured into signing that Agreement by a threat that the husband would not marry her without it, and she had just given birth to their child; she also claims she had no attorney. At present, there is no proof beyond her bald assertion of these factors. Nor is there any showing of prejudice to her ability to contest the Agreement. See, e.g., White v. Priester, 78 AD3d 1169 (2d Dept. 2010) [laches requires lengthy delay in asserting right, and resulting prejudice]. The Court also notes that neither party has addressed the possible application of Domestic Relations Law §250, and its effect on claims or defenses under the Agreement.

Because there is no evidence submitted that would resolve the issue of the Agreement in favor of either party - indeed, the Court has not been provided with copies of pleadings, let alone sufficient proof - it must await discovery and the trial. Hence, in the absence of a dispositive finding in favor of defendant, the pendent lite award remains the same.

Plaintiff admits to knowing of the Agreement and that she told her attorney about it just prior to defendant's deposition but offers no reasons to why the Agreement was not disclosed in her motion. She also contends that the Agreement should be set aside because she was not represented, she had no choice but to sign it, she trusted attorney Stephens to look after her interests and that in any event, it was later voided by the parties. No details are given in support of the latter contention.

A principal issue on this case is whether and to what extent defendant has an interest in the Sky Athletic Club and in the house he purportedly leases from his daughter. The Club had gross receipts in 2009 of more than $1.4 million and defendant's daughter is named as a one-third owner. Attorney Stephens is the attorney for the Club and records submitted on the cross motion reveal payments to him to Leming and to defendant. Periodic payments are also shown to have been made by the Club to plaintiff-wife. In addition, defendant does not deny that many of his personal bills are paid by the Club. Defendant states that he owes his daughter $372,000.00 pursuant to an oral agreement and that his rent to his daughter and his utilities are paid by the Club. His groceries, outside dining, clothing and auto insurance for [*4]the daughter of the union and other expenses, including health insurance and a trip to Italy are paid by the Club or with a debit card issued to the Club.

The plaintiff's deposition has not been submitted but based on the few disconnected and disjointed examination before trial extracts of the defendant's examination before trial, the Court concludes that the business and affairs of defendant and the Club are intimately intertwined and that whether the Agreement is applicable or not, there is a substantial question of whether or not the Club is a marital asset and thus, subject to equitable distribution. This is so because the Agreement does not exclude all property acquired during the marriage. If the Agreement does apply, then plaintiff's rights are dramatically altered.

That prong of plaintiff's cross motion which seeks to disqualify defendant's attorney Stephens is granted. Although the request is not supported by any reference to legal authority or regulation, it appears to this Court that the basis for the request is that which is commonly referred to as the "advocate witness rule".

In effect, plaintiff contends that the defendant's attorney should be disqualified from representing defendant because to do so would violate the New York Rules of Professional Conduct which became effective April 1, 2009, (the New Rules). The New Rules provide that:

A lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact unless:

(1) the testimony relates solely to an uncontested issue;

(2) the testimony relates solely to the nature and value of legal services rendered in the matter;

(3) disqualification of the lawyer would work substantial hardship on the client;

(4) the testimony will relate solely to a matter of formality, and there is no reason to believe that substantial evidence will be offered in opposition to the testimony; or

(5) the testimony is authorized by the tribunal. Rules of Professional Conduct 22 NYCRR §1200.29 [Rule 3.7] Lawyer as Witness.

This rule replaces previous rule DR5-102 (22 NYCRR §1200.21) Lawyers as Witnesses, which, while not identical also requires that the issue for which the attorney is called be significant and that disqualification should occur when the attorney ought to be called as a witness.

Initially, the Court finds that the New Rules apply to the instant motion in regulating the behavior of the attorneys involved, because the present disqualification issue arose after April 1, 2009. However, as there is no basis for concluding that the holdings of well established case law have been eviscerated by the adoption of the New Rules, resort to such case law may be made by the Court.

A party is entitled to representation of his own choosing, which should not be abridged absent a clear showing that disqualification is warranted. Feeley v Midas Props., [*5]199 AD2d 238 (2d Dept. 1993). A court must "consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting of granting disqualification or continuing representation." S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 440 (1987). The party seeking the disqualification of the attorney bears the burden of the motion. Id. at 445.

The reasons for prohibiting an advocate to also act as a fact witness have previously been well stated by Justice LaMarca in Smolenski v. TGI Friday's Inc., 15 Misc 3d 792, 794-795 (Sup. Ct. Nassau County 2007).

"The reasons for the prohibition against the lawyer as witness' provision of the Code are described in Simon's Code of Professional Responsibility Annotated (Professor Roy Simon, 2004 Edition at 579). As set forth, the rule avoids several potential effects on the trier of fact, which are inevitable when the advocate becomes a fact witness, including either discounting or bolstering the lawyer's testimony. The rule also avoids any potential conflict between the attorney and his client resulting from the lawyer's desire to place himself in the best light and the unseemly sight of arguing to a judge or jury about his own credibility . . .' . . . The prohibition prevents any unfairness arising from the lawyer presenting his case twice to the trier of fact, through his client and later through his own testimony. Finally the regulation avoids the evident practical awkwardness of bringing in a new advocate to question the lawyer-witness." (Richard L. v. Flora L., 6 Misc 3d 1014[A], 205 NY Slip Op 50044[U], [Sup Ct, Suffolk County 2005]).

As this motion for disqualification is based on the "Lawyer as Witness" rule, the moving party must demonstrate that defendant's counsel is likely to testify on a significant issue of fact and that none of the exceptions apply.

Here, defendant's counsel has already "testified" by submitting his affirmation relating the facts and circumstances of the execution of the Agreement. Hence, whether he ought to testify or is likely to testify, may be accepted as established. The second prong is that the attorney is a witness on a "significant issue of fact". This requirement has also been satisfied as well. Counsel here was a major participant in the event. As such, his testimony is relevant to significant factual issues. Kattas v. Sherman, 32 AD3d 496 (2d Dept. 2006).

There is no indication that the disqualification motion has been made for improper motives as it was only made in response to defendant's motion and after Stephens interjected himself into the case as a fact witness. Cf Bentvena v. Edelman, 47 AD3d 651 (2d Dept. 2008).

The Court has considered whether counsel's testimony would merely cumulative to what defendant might attest. This factor is not one of the noted exceptions, and, in any event, it cannot be said that the testimony is cumulative without knowing the nature of the other testimony. Notably it is attorney Stephens, not defendant, who claims to have had contact [*6]with plaintiff's attorney. A finding that an attorney's testimony would be cumulative and thus not necessary, simply allows an attorney to refrain from testifying while remaining as counsel. As noted above, counsel here has not refrained from testifying because he has already testified via his affirmation.

With respect to the noted exceptions to the attorney advocate rule, defendant has failed to show that disqualification would work a substantial hardship. The case is still in a discovery and pretrial phase, there is no suggestion of any monetary damage to defendant as a result of a change and there has been no showing that counsel possesses any unique abilities, skills or knowledge, the loss of which would imperil defendant's chances of ultimate success. It cannot be said that the issues upon which counsel will testify are uncontested because at least one of the claims, ie whether plaintiff was represented by her own counsel goes to the heart of whether the Agreement is enforceable.The remaining exceptions are not applicable here.

Of further note is counsel's relationship with the Club. It is admitted that Stephens represents the Club on legal affairs and plaintiff is claiming that defendant is an owner of the Club and that such ownership interest is marital property. Whether counsel is in possession of any nonprivileged facts which bear on this issue can not yet be determined but the Court can not disregard the likelihood of further discovery on this issue.

Given the foregoing, the Court concludes that disqualification must result. See also Wensley and Partners, LLC v. Polimeni, 262 ADd2d 311 (2d Dept. 1999); Fairview at Old Westfield, L.P. v. European Am. Bank, 186 AD2d 238 (2d Dept. 1992).

Plaintiff's cross motion to compel defendant's daughter to give deposition testimony is denied. Once again, this application is made without resort to any legal authority and the mere fact that Maureen Leming owns real property in this State does not suffice to establish jurisdiction over her for the purposes of giving testimony in an unrelated action. Cf CPLR §302(a)4. The Court does not disagree that Leming's testimony is relevant on the issues of the Club and Freeport properties. However, given her status as a domiciliary of New Jersey, where she is also employed, the reach of this Court's authority on the facts disclosed stops short at the Hudson River. Connors, Practice Commentaries, McKinneys' Cons. Laws of NY, Book 7B, CPLR C 2303: 6 and 7. Rules of discovery may be found in CPLR Article 31 among which are Rule 3108 which authorizes a commission or letters rogatory for the taking of a deposition outside of the State and CPLR §3119 (eff. January 1, 2011) entitled Uniform Interstate Depositions and Discovery. If the State of New Jersey, where Leming works and is domiciled has adopted this legislation, then it may be employed in New Jersey for that purpose.

The Court makes an additional award of counsel fees to the plaintiff in the amount of $10,000. DRL §237 authorizes a court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice [*7]requires, having regard to the circumstances of the case and of the respective parties. DeCabrera v. Cabrera-Rosete, 70 NY2d 879 (1987). This sum shall be paid to plaintiff's counsel within 30 days of the date of this order. In arriving at this amount, the Court has considered the complexities of this action, the disparity of financial circumstances, the need for discovery on the issues that have now been raised by defendant and that the above amount is reasonable and appropriate.

The conference previously scheduled for February 28, 2011, is cancelled in order for defendant to obtain new counsel and a new conference is scheduled for April 27, 2011 at 9:30. No adjournments of this conference will be permitted absent the permission of or Order of this Court. All parties are forewarned that failure to attend the conference may result in Judgment by Default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.).

This constitutes the decision and order of this Court.

Dated:February 17, 2011

E N T E R:

_________________________________

HON. DANIEL PALMIERI, J.S.C.