Frias v. Frias , 155 A.D.2d 585 ( 1989 )

— In an action, inter alla, for divorce, the defendant Maria Frias, as administratrix of the estate of Rosa Frias, deceased, appeals from an order of the Supreme Court, Kings County (Imperato, J.H.O.), entered January 26, 1989, which granted the plaintiff’s cross motion to disqualify counsel for the estate of Rosa Frias, deceased.

Ordered that the order is reversed, with costs payable by the plaintiff, and the plaintiff’s cross motion is denied.

We find that the plaintiff has failed to meet her burden of establishing that if counsel for the defendant Maria Frias is called as a witness by the plaintiff, his testimony will or may be prejudicial to his client (Code of Professional Responsibility DR 5-102 [B]; Ocean-Clear, Inc. v Continental Cas. Co., 94 AD2d 717, 719). As noted by the court, whether counsel’s projected testimony would be prejudicial to his client is "the subject of speculation”. Accordingly, the plaintiff’s cross motion to disqualify counsel should have been denied. Mangano, J. P., Lawrence, Hooper and Balletta, JJ., concur.