Matter of Florio

[*1] Matter of Florio 2013 NY Slip Op 50730(U) Decided on May 8, 2013 Sur Ct, Nassau County McCarty, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 8, 2013
Sur Ct, Nassau County

In the Matter of Proceeding to Settle the Accounts of Julie Faure as Executor of the Estate of C Anne V. Florio, a/k/a ANNE FLORIO, Deceased.



355166/C



Steven Hand (for respondent)

Jaspan Schlesinger LLP

300 Garden City Plaza

Garden City, NY 11530

Giovanni Silvagni, Esq. (for petitioner)

Connors & Sullivan, LLP

7408 Fifth Ave., Ste. 2

Brooklyn, NY 11209

Edward W. McCarty, J.

This is a motion for an order disqualifying the attorneys representing the executor of the estate.

Before the court is a petition to settle the accounts of the executor for the period

March 10, 2009 through June 4, 2011 and a petition to revoke letters testamentary. The executor and Michael Florio are siblings and are the sole beneficiaries of the estate. The motion does not appear to be premature (although objections have not been filed) as the SCPA 2211 examination is partially completed and the issues are defined (Skiff-Murray v Murray, 3 AD3d 610 [3d Dept 2004]).

Mr. Florio seeks to disqualify the attorneys for the executor on the grounds that one of the attorneys is a necessary witness who testimony will be prejudicial to the client (Rules of Professional Conduct 22 NYCRR 1200.00 Rule 3.7 [a]). Specifically, it is alleged that the attorney's testimony is necessary with regard to the deposit of assets of the estate into an account [*2]in the names of the executor and decedent as joint tenants.

At the SCPA 2211 examination the executor testified that she deposited estate funds into an account she held with the decedent as joint tenants. The attorney stated at the deposition that an estate account was not opened because letters testamentary had not issued. The attorney further stated that the deposits were made based upon his advice. Mr. Florio contends that the attorney is a necessary witness on the issue of the commingling of funds.

Rule 3.7 provides that unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact." The party moving for disqualification must demonstrate that: (1) the testimony of the opposing party's counsel is necessary to his case; and (2) such testimony would be prejudicial to the client (Magnus v Sklover, 95 AD3d 837 [2d Dept 2012]; Trimarco v Data Treasury Corp., 91 AD3d 756 [2d Dept 2012]).

Where "advice of counsel" is raised as a defense, the attorney would be expected to testify on behalf of his client, not against the client. Disqualification is appropriate where an attorney is a necessary witness on behalf of his client (Friia v Palumbo, 89 AD3d 896 [2d Dept 2013]; Korfmann v Kemper Nat. Ins. Co., 258 AD2d 508 [2d Dept 1999]; Crawford v Hospital of Albert Einstein Coll. of Medicine, 159 AD2d 304 [lst Dept 1990]).

In this case, however, there is no issue of fact as to the commingling of fundsas the executor admitted that she deposited estate assets into the joint account. An attorney should not be disqualified where his testimony relates solely to an uncontested issue ([Rules of Professional Conduct 22 NYCRR 1200.00] Rule 3.7 [a] [1]).

As the executor concedes that she deposited funds into the joint account, the only remaining issue with respect to commingling is the allegation of bad faith. In this accounting proceeding, the fact of commingling is incidental to the allegation that the executor intentionally diverted assets of the estate (see Matter of Petrocelli, 307 AD2d 358 [2d Dept 2003]). The question of bad faith is merged into the issue of conversion. Advice of counsel is obviously not raised as a defense to the alleged misappropriation of funds and the attorney is therefore not a necessary witness on behalf of the executor.

The proceeding for revocation of letters testamentary will be held in abeyance pending termination of the accounting proceedings. The order of proceedings will be further addressed in a subsequent decision.

A party is entitled to be represented in ongoing litigation by counsel of her own choosing and this is a valued right which should not be abridged absent a clear showing that disqualification is warranted (Aryehy v Aryehy, 14 AD3d 634 [2d Dept 2005]).

The executor has been represented by the current firm for four years and in connection with numerous pending proceedings. This is a modest estate and the expenses of litigation may eventually exceed the amount of the funds in dispute. Taking all of the circumstances into consideration, the court concludes that counsel should be permitted to continue to represent the executor.

The motion for an order disqualifying the attorneys for the executor is denied.

Settle order.

Dated: May 8, 2013 [*3]

EDWARD W. McCARTY III

Judge of the

Surrogate's Court