Gerald R. Clifford, Respondent, v. Montana Mills Bread Co., Inc., Appellant, et al., Defendants

Gerald R. Clifford, Respondent, v Montana Mills Bread Co., Inc., Appellant, et al., Defendants. (Appeal No. 1.) [715 NYS2d 172] [MAJORITY] —Order unanimously affirmed without costs. Memorandum: Supreme Court properly denied that part of the motion of defendant Montana Mills Bread Co., Inc. seeking to disqualify John Parrinello, Esq., from acting as plaintiffs attorney in the instant action. Although Parrinello’s partner is disqualified from representing plaintiff on the ground that he ought to be called as a witness on plaintiffs behalf (see, Code of Professional Responsibility DR 5-102 [c] [22 NYCRR 1200.21 (c)]; Hillcrest Owners v Preferred Mut. Ins. Co., 234 AD2d 269), there is no basis for concluding that the partner’s testimony may be prejudicial to plaintiff (see, Code of Professional Responsibility DR 5-102 [d] [22 NYCRR 1200.21 (d)]; Martinez v Suozzi, 186 AD2d 378, 379). The court also properly denied plaintiffs motion for summary judgment. Plaintiff failed to meet his burden of establishing his entitlement to judgment as a matter of law (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). (Appeal from Order of Supreme Court, Monroe County, Stander, J. — Disqualify Counsel.) Present — Green, J. P., Pine, Hurlbutt, Kehoe and Lawton, JJ.