Matter of Porter

Matter of Porter 2006 NY Slip Op 09252 [35 AD3d 477] December 5, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

In the Matter of the Estate of Marguerite C. Porter, Also Known as Margaret Porter, Deceased. Peter D'Agostino et al., Appellants; Marilyn Ritchie, as Guardian of the Person and Property of Rita Mary Hughes, Respondent.

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In a contested probate proceeding, the petitioners appeal from an order of the Surrogate's Court, Richmond County (Fusco, S.), dated September 13, 2005, which denied their motion to disqualify the objectant's attorney.

Ordered that the order is affirmed, with costs payable by the appellants personally.

Disqualification of the objectant's attorney for violation of the advocate-witness rule was properly denied in the absence of a showing that the testimony of the attorney would be necessary (see Code of Professional Responsibility DR 5-102 [22 NYCRR 1200.21]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437, 446 [1987]). Nor was disqualification warranted under Code of Professional Responsibility DR 7-104 (see 22 NYCRR 1200.35), as at the time the objectant's attorney spoke to the petitioners they were not represented by counsel. Miller, J.P., Ritter, Santucci and Lunn, JJ., concur.