dissent in a memorandum by Ross, J., as follows: Plaintiffs commenced this action to establish their 50% interest in a restaurant located in Manhattan. Defendant Eamonn Doran (Doran) contends that he is the sole owner of the restaurant. Our examination of the record indicates that it is undisputed that plaintiffs’ counsel represented defendants concerning unrelated matters prior to the instant controversy. During this earlier representation, the defendant Doran alleges in an affidavit that he revealed to James S. Morris (Morris), a partner in plaintiffs’ counsel’s law firm, confidential and privileged information that is pertinent to the instant litigation. Thus, defendants moved to disqualify plaintiffs’ attorney, upon the basis that Morris and his firm possess privileged information and that Morris may be a witness at the trial of this matter. Special Term granted the motion. We agree and would affirm.
Morris, in an affidavit submitted to support plaintiffs’ opposition to this motion, does not rule out the possibility that he may testify in this case and he does not unequivocally deny that his firm possesses privileged information. In fact, Morris states in that affidavit: “I should point out to the Court that * * * Doran delivered his file to me in the Clancy action [note: this Clancy matter relates to the earlier representation] * * * I assigned [t]he Clancy case to one of my associates, Walter P. Kelly, Esq. * * * I don’t believe that I ever read the transcript of [Doran’s] deposition in [t]he Clancy [c]ase * * * I presently have no plans to testify on behalf of the plaintiffs in this action * * * [and a]t the present time, there are no plans or proposals to have anyone at Whitman & Ransom testify”.
In view of the extent of plaintiffs’ attorneys’ prior witnesses in the instant case, we conclude that their disqualification is mandated (Tru-Bite Labs v Ahsman, 54 AD2d 345; Code of Professional Responsibility, DR 5-102 [A], as approved by the American Bar Association and adopted by the New York State Bar Association).
Accordingly, the order, Supreme Court, New York County (Seymour Schwartz, J.), entered April 3, 1984, which granted defendants’ motion to disqualify plaintiffs’ counsel, should be affirmed.