ISLAND PA-VIN CORP. v. KLINGER

Appeal by defendant from an order of the Supreme Court, Suffolk County, dated October 26, 1973, which, during the course of the trial and upon the court's own motion, disqualified her attorney. Said attorney, by order of this court dated December 5, 1973, was permitted to represent defendant for the limited purpose of this appeal. Order reversed, without costs. In our opinion it was an abuse of discretion for the trial court, sua sponte, to disqualify defendant's attorney. The record shows that the attorney no longer represented the key witness for plaintiff, which representation was the reason given for the disqualification. Moreover, the attorney's former relationship with that witness had been disclosed to defendant and she nevertheless desired to have him continue to represent her. Finally, plaintiff's attorney indicated that any prior relationship with plaintiff's witness had nothing to do with the subject matter of this lawsuit and that he too saw no conflict in having defendant's counsel continue (see Code of Professional Responsibility, DR 5-105, subd. [C]; see, also, Moller v. Pickard, 232 N.Y. 271, 274). Latham, Acting P.J., Christ, Benjamin, Munder and Shapiro, JJ., concur. [ 76 Misc.2d 180.]