Transcontinental Construction Services, Ltd. v. McDonough, Marcus, Cohn & Tretter, P. C.

Order, Supreme Court, New York County (William Davis, J.), entered March 25, 1994, which denied defendant’s motion to disqualify plaintiff’s counsel, unanimously affirmed, with costs. In an action for legal malpractice in which defendant impleaded the attorney who was substituted for it in the underlying matter and who represents plaintiff in this malpractice action, defendant’s motion to disqualify plaintiff’s attorney on the ground that he "is now a party to this action and will certainly be called as a witness” was properly denied. Defendant did not meet its burden of demonstrating either that the attorney was a necessary witness for plaintiff, or that defendant would call the attorney and that the attorney would testify adversely to plaintiff’s interests (S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 445-446; Luk Lamellen u. Kupplungsbau GmbH v Lerner, 167 AD2d 451). Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.