In the above entitled proceeding, Anthony Giordano moves this Court for an order: (i) compelling Petitioner Debra Grace Lutz and Respondent/Interested Party Camille Marie Flacke to provide full and complete responses to his Demand for Discovery and Examination pursuant to SCPA §1404 and Notice for Discovery and Inspection dated September 20, 2021 in compliance with CPLR §3122(c); and (ii) disqualifying The Behrins Law Firm as Lutz and Flacke’s counsel. Lutz and Flacke submit opposition to the Giordano’s motion, as well as cross move for an Order: (i) denying Giordano’s motion to compel discovery and to disqualify counsel; (ii) awarding petitioner Letters Testamentary pursuant to SCPA 1412; (iii) limiting discovery pursuant to CPLR §3103 in respect of Giordano’s demand for Discovery and Examination pursuant to SCPA §1404 and Notice for Discovery and Inspection dated September 20, 2021; (iv) awarding costs, sanctions, counsel fees pursuant to 22 NYCRR; Part 130 22 NYCRR 1200.5; and (v) disqualifying the firm of Howard M. File, P.C. and all its members as “of counsel” to the attorneys of record for Giordano in this proceeding. Giordano opposes the cross motion, arguing that disqualification is warranted. Giordano alleges Lutz’s counsel actively participated in the matters at issue in this proceeding and is therefore “likely to be a witness on significant issues of fact.” Lutz and Flacke submit a reply to the cross motion seeking to disqualify the Howard M. File, P.C. firm and all its members from representing Giordano. They argue that James E. Saks, Esq, of counsel to the Howard M. File, P.C. firm, conducted legal work for Giordano and his wife, as well as nursing home estate planning for the decedent. James E. Saks, Esq. submits a supplemental affirmation in response to Lutz and Flacke’s reply affirmation. In the supplemental affirmation, James E. Saks, Esq. affirms that any legal services he performed were for Giordano’s wife, who is not a party in this matter. Moreover, he further states that he did not perform any legal services concerning or pertaining to the decedent’s estate, assets, financial background, financial responsibility, or any nursing home plan for the decedent. Lastly, Lutz and Flacke submit a sur-reply affirmation arguing to the contrary that Mr. Sak represented Giordano in connection with a nursing home admission plan for him and his wife. Background The decedent passed away on June 13, 2019. Lutz, daughter of decedent, petitioned this Court on December 5, 2019, to probate a propounded instrument dated May 31, 2017, as the Last Will and Testament of decedent together with a Codicil dated August 17, 2017, and for the issuance of letters testamentary. Lutz also petitioned for preliminary letters testamentary, contending that there would be a substantial delay in the completion of the probate proceeding which could delay the sale of certain estate real property. Objections to the preliminary letters were filed by Giordano. On March 29, 2021, this court issued preliminary letters testamentary to Lutz limited to the sale of 121 Quinlan Avenue, Staten Island, New York and the payment of all closing costs and fees, and ordered the net proceeds held in escrow. On August 25, 2021, this court issued an Order directing parties to comply with the agreed-upon schedule set forth in the Order. On April 30, 2021, Giordano petitioned this court for Letters of Administration with Limitations to commence an action of behalf of the estate to recover damages for real and personal property which was transferred and/or conveyed to Lutz pursuant to a power of attorney executed by decedent. Lutz and Flacke submitted opposition dated May 21, 2021, to Giordano’s Order to Show Cause for Letters of Administration with Limitations. This court issued an Order on May 24, 2021, enjoining Lutz from conveying, transferring, and/or encumbering the real property commonly known as 106 Beachwood Place Staten Island, New York, pending the hearing and determination of the Order to Show Cause. Analysis The advocate-witness disqualification rules contained in the Code of Professional Responsibility (“CPR”) provide guidance, not binding authority, to determine whether a party’s law firm at its adversary’s instance, should be disqualified during litigation. In making such a decision, courts must consider factors such as the party’s valued right to choose its own counsel and the fairness and effect in the particular factual setting of granting disqualification or continuing representation (S & S Hotel Ventures Ltd. P’ship v. 777 S.H. Corp., 69 NY2d 437 [1987]). The present particular factual setting is pre-trial discovery. Disqualification denies a party’s right to representation by the attorney of their choice and should only be pursued when necessary (Matter of Abrams, 62 NY2d 183, 184 [1984]). The CPR establishes ethical standards that guide attorneys in their professional conduct and its importance is not to be diminished or denigrated by indifference (Matter of Weinstock, 40 NY2d 1 [1976]). However, when the issue is raised in litigation, which in addition involves the interests of clients and others, the CPR cannot be applied as if they were controlling statutory law (S&S Hotel at 443). The Court of Appeals in S&S Hotel reversed the Appellate Division’s finding to disqualify petitioner’s counsel. In S&S Hotel, counsel was called as a witness due to his involvement in the relevant transactions. The Appellate Division found that his involvement, leading him to be a witness in the case, called for a mandatory consequence of disqualification as counsel. The Court of Appeals held that the mandated consequence was an error (Id.). “When we agree that the Code applies in an equitable manner to a matter before us, we should not hesitate to enforce it with vigor. When we find an area of uncertainty, however, we must use our judicial process to make our own decisions in the interest of justice to all concerned” (Foley & Co. v. Vanderbilt, 2nd Cir., 523 F.2d 1357). In the Estate of Giantasio, the opponent of the will moved to disqualify petitioner’s counsel because members and employees of the firm would be necessary witnesses at trial, and the firm had previously represented the opponent (661 NYS2d 935, 936 [Sur. 1997]). The Court noted that there remained a question as to whether the advocate-witness disqualification of proponent’s counsel was warranted due to their involvement in the drafting and execution of the will in the pretrial stage of the proceeding (Id.). The Court noted that there did not appear to be any officially reported case permitting an attorney to continue to represent the proponent until the actual trial, there were several decisions in the New York Law Journal holding that disqualification of attorneys because they may be witnesses at the trial does not require their disqualification prior to the trial (Estate of Wolther, NYLJ 6/3/97, p. 32, col. 6, Surr.Ct.Nassau Co., citing two of its own cases, Matter of May, NYLJ, 8/24/88, p. 20, col. 6, and Matter of Bender, NYLJ, 5/20/86, p. 14, col. 5; see also Matter of Reilly, NYLJ, 1/27/97, p. 34, col. 4, Surr.Ct.Kings Co., citing Matter of Kelner, NYLJ, 1/25/96, p. 34, col. 4, Surr.Ct.Westchester Co., 661 NYS2d 935, 936 [Sur. 1997]). The Court held that in the exercise of its discretion, the branch of opponent’s motion which seeks the disqualification of proponent’s counsel prior to trial should be denied (Id. at 937). In the contested probate proceeding of In re Frances Simon, opponent moved to disqualify petitioner’s law firm pursuant to Disciplinary Rule 5-101(B) due to the fact that a member of that firm was a necessary witness at trial, as he was the draftsman and an attesting witness to the will. The Court held that even if disqualification were required, the preferred procedure would be to apply it only to the trial itself and not to pre-trial proceedings. This is to avoid the use of disqualification as a tactic to force a settlement based upon the additional expenditure to the estate to retain new counsel. No. 208P1999, 2000 WL 35923339 (N.Y. Sur. Jan. 06, 2000). Movants herein moved to disqualify Lutz and Flacke’s counsel on the basis that their counsel’s testimony is necessary to determine the disputed claims concerning the propounded will, codicil, and the transfer of the 106 Beechwood Place property. Giordano further states that counsel for Lutz and Flacke represented decedent and her late husband in the preparation of the Will and Codicil as well as the Deed by which 106 Beechwood Place was transferred to Lutz. He further argued that since counsel for Lutz and Flacke personally participated in the preparation and execution of the above-mentioned instruments and was a witness to the subscribing Will and Codicil, he and his firm must be disqualified. This proceeding is in the pre-trial stage as parties are working through discovery and SCPA §1404 examinations. Therefore, it is premature to disqualify counsel for Lutz and Flacke. Upon the foregoing papers, Giordano’s motion for an order compelling discovery is held in abeyance pending the outcome of a discovery conference. This Court directs all counsel to appear for a discovery conference on August 3, 2022 at 2:30pm. The appearance will be by video conference utilizing the Microsoft Teams application and an invite will be sent to the parties. Lutz and Flacke’s cross motion seeking to disqualify the firm of Howard M. File, P.C. and all its members as “of counsel” to the attorneys of record for Giordano in this proceeding, to impose sanctions on Giordano and/or the firm of Howard M. File, Esq, and to issue Lutz and Flacke a protective order pursuant to 3103(a) is denied. Lutz and Flacke’s motion further seek the enlargement of the preliminary letters previously issued to Lutz, to give her the full powers of preliminary letters, and to save the power to distribute until such time as the will and codicil are admitted to probate or rejected is hereby denied. Moreover, the Order to Show Cause dated May 24, 2021, is granted to the extent that limited letters of administration for the purpose of commencing a turnover proceeding pursuant to the SCPA is granted to Giordano. Further, provided that within 45 days, Giordano posts an undertaking in the amount of $495,000.00, that portion of the Order to Show Cause seeking to enjoin Lutz from conveying, transferring, and/or encumbering the real property commonly known as 106 Beachwood Place Staten Island, New York, is granted. This decision shall constitute the order of this Court. Dated: July 18, 2022
