Matter of Estate of Carol G. Dudley

Matter of Dudley 2007 NY Slip Op 10358 [46 AD3d 1461] December 21, 2007 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 13, 2008

In the Matter of the Estate of Carol G. Dudley, Deceased. James A. Sommer, as Executor of the Estate of Carol G. Dudley, Deceased, Respondent; Eugene Brushaber et al., Appellants.

—[*1] Charles Edward Fagan, Jamestown, for respondents-appellants.

Phillips Lytle LLP, Buffalo (Alan J. Bozer of counsel), for petitioner-respondent.

Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), as Statutory Representative Pursuant to EPTL 8-1.1 and 8-1.4.

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.