¶1(dissenting). We respectfully dissent. Disqualification of an attorney or a law firm “may be required only when it is likely that the testimony to be given by the witness is necessary” (S & S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 445-446). “Testimony may be relevant and even highly useful but still not strictly necessary. A finding of necessity takes into account such factors as the significance of the matters, weight of the testimony, and availability of other evidence” (id. at 446; see Burdett Radiology Consultants v Samaritan Hosp., 158 AD2d 132, 134-135). In addition, even if the attorney may be called to testify by the opposing side as a witness on a significant issue, withdrawal is required only if it is apparent that the testimony would be prejudicial to the client (see Broadwhite Assoc. v Truong, 237 AD2d 162, 163; Martinez v Suozzi, 186 AD2d 378, 379).
¶2Here, Supreme Court did not abuse its discretion in denying plaintiffs motion to disqualify the law firm representing defendant (see generally Olmoz v Town of Fishkill, 258 AD2d 447, 447). Although plaintiff established that the testimony of defendant’s attorney would be relevant, he failed to meet his burden of establishing that the testimony of defendant’s attorney would be necessary (see Eisenstadt v Eisenstadt, 282 AD2d 570; McElroy v Kitchen, 254 AD2d 828). Defendant is available to testify on the issue whether she was represented by counsel when she signed the agreement, and she can testify concerning her mental capacity when she signed the agreement. Furthermore, plaintiff failed to establish that the testimony of defendant’s attorney would be prejudicial to defendant (see McElroy, 254 AD2d 828). Present—Pigott, Jr., P.J., Hayes, Wisner, Scudder and Kehoe, JJ.