Quiros v. Mount Saint Michael Academy

Order, Supreme Court, Bronx County (Howard Silver, J.), entered February 15, 2002, which, to the extent appealed from as limited by the brief, granted defendants’ motion for summary judgment dismissing the complaint and denied plaintiff’s motion to disqualify defendants’ counsel pursuant to Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21), unanimously affirmed, without costs.

Summary judgment dismissing the complaint, alleging that the termination by defendants of plaintiffs employment at their school was motivated by racial animus, was proper in *186light of the undisputed evidence demonstrating that defendant school was ordered by its board of directors to cut $240,000 from its budget and that terminating plaintiff and eliminating the position he had held resulted in significant savings for the school, and in light of the lack of any evidence that there was some other, impermissible motive behind the decision to dispense with plaintiffs services (see Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]; Moorer v Grumman Aerospace Corp., 964 F Supp 665, 673-674 [1997], affd 162 F3d 1148 [1998]; cf. Price Waterhouse v Hopkins, 490 US 228 [1989]).

Although the issue of whether defendants’ counsel ought to have been disqualified pursuant to Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21) is moot since, summary judgment having been granted, there will be no trial of this matter, we note that the record provides little support for plaintiff’s contention that defendants’ counsel was consequentially involved in the decision to terminate his services with the school and would thus likely be in a position to provide indispensable testimony as to the motive for his dismissal (see S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 444 [1987]).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Tom, J.P., Buckley, Rosenberger, Williams and Friedman, JJ.