Surrogate Robert Gigante
Law Firm Kuhn & O’Toole (K&O) attorney to the estate administrator moved to disqualify the firm of Gabor & Marotta (G&M). K&O argued G&M was instrumental in preparing documents for the transfer of disputed real property from decedent to respondents Fulciniti and Ciccardini, in this contested discovery proceeding claiming undue influence and duress, among other things. K&O contended attorney Gabor was a necessary witness in this action, and noted G&M should not be permitted to represent both Fulciniti, a trustee, and Ciccardini, the beneficiary of the trust, as the clients had adverse interests. The court agreed finding as decedent was previously ill and confined to a nursing home at the time documents were drafted, her mental capacity was a pertinent issue. It noted a notary public who witnessed decedent’s signature and was willing to testify as to decedent’s capacity on the date of execution did not cover the lacking, but relevant, testimony Gabor had of decedent’s capacity at that time. Thus, dismissal of G&M was warranted as Gabor was a “critical source of facts” of decedent’s state of mind. Also, the court stated even if Gabor was not a necessary witness, G&M would be disqualified due to the apparent conflict of interest, granting K&O’s motion.
