293 A.D.2d 699
N.Y. App. Div.
2002

In an action, inter alia, for the return of a down payment on a contract for the sale of real property, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Kitson, J.), dated March 7, 2001, as denied their motion for summary judgment dismissing the complaint and granted that *700branch of the plaintiffs’ cross motion which was to disqualify the defendants’ attorney.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendants’ motion for summary judgment dismissing the complaint was properly denied since there are triable issues of fact (see CPLR 3212 [b]; Alvarez v Prospect Hosp., 68 NY2d 320; Milhim v Almo Realty Corp., 188 AD2d 450).

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ cross motion which was to disqualify the defendants’ attorney since he is a necessary witness (see Code of Professional Responsibility DR 5-102 [a] [22 NYCRR 1200.21 (a)]; S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 445-446; Korfmann v Kemper Natl. Ins. Co., 258 AD2d 508; Hillcrest Owners v Preferred Mut. Ins. Co., 234 AD2d 269; Brunette v Gianfelice, 171 AD2d 719). O’Brien, J.P., Friedmann, H. Miller and Crane, JJ., concur.