In re the Estate of Dudley

Appellate Division of the Supreme Court of New York

In re the Estate of Dudley

46 A.D.3d 1461, 847 N.Y.S.2d 495

Appellate Division of the Supreme Court of the State of New York·Decided December 21, 2007·Published

Opinion

Appeal from a decree (denominated decree and order) of the Surrogate’s Court, Chautauqua County (Larry M. Himelein, S.), entered December 4, 2006. The decree, among other things, granted petitioner’s motion for summary judgment.

It is hereby ordered that the decree so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision by the Surrogate. We add only that Surrogate’s Court properly denied that part of respondents’ cross motion seeking the disqualification of Phillips Lytle LLP (law firm) from representing petitioner. Disqualification of an attorney or law firm for violation of the advocate-witness rule “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 [1987]; see Matter of Porter, 35 AD3d 477 [2006]) and, here, respondents failed to establish that it is likely that the testimony of the attorney in the law firm will be necessary (cf. Zagari v Zagari, 295 AD2d 891 [2002]; Chang v Chang, 190 AD2d 311, 318 [1993]). Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.

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Appeal from a decree (denominated decree and order) of the Surrogate’s Court, Chautauqua County (Larry M. Himelein, S.), entered December 4, 2006. The decree, among other things, granted petitioner’s motion for summary judgment.

It is hereby ordered that the decree so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We affirm for reasons stated in the decision by the Surrogate. We add only that Surrogate’s Court properly denied that part of respondents’ cross motion seeking the disqualification of Phillips Lytle LLP (law firm) from representing petitioner. Disqualification of an attorney or law firm for violation of the advocate-witness rule “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 [1987]; see Matter of Porter, 35 AD3d 477 [2006]) and, here, respondents failed to establish that it is likely that the testimony of the attorney in the law firm will be necessary (cf. Zagari v Zagari, 295 AD2d 891 [2002]; Chang v Chang, 190 AD2d 311, 318 [1993]). Present—Scudder, P.J., Hurlbutt, Lunn, Fahey and Pine, JJ.

In re the Estate of Dudley, 46 A.D.3d 1461, 847 N.Y.S.2d 495 (N.Y. Ct. App. 2007).

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46 A.D.3d 1461 (In re the Estate of Dudley) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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