IN RE: Marguerite C. PORTER (2006)

Supreme Court, Appellate Division, Second Department, New York.

IN RE: Marguerite C. PORTER, a/k/a Margaret Porter, deceased. Peter D'Agostino, et al., appellants; Marilyn Ritchie, etc., respondent.

Decided: December 05, 2006

HOWARD MILLER, J.P., DAVID S. RITTER, FRED T. SANTUCCI, and ROBERT J. LUNN, JJ.

Connors and Sullivan, P.C., Brooklyn, N.Y. (Thomas C. Murray, Jr., and Marc J. Monte of counsel), for appellants. Gina-Marie Reitano, Staten Island, N.Y., for respondent.

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 N.Y.2d 437, 446, 515 N.Y.S.2d 735, 508 N.E.2d 647). 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.

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