Opinion
2012-12-12
Edith McELDUFF, plaintiff-appellant, v. Edward McELDUFF, respondent; Nancy M. Eraca, nonparty-appellant. (Action No. 1) Edward McElduff, respondent, v. Edith Marie McElduff, defendant-appellant; Nancy M. Eraca, nonparty-appellant. (Action No. 2)
Edith McElduff, Elmira, N.Y., named in Action No. 2 as Edith Marie McElduff, plaintiff-appellant pro se in Action No. 1 and defendant-appellant pro se in Action No. 2. Nancy M. Eraca, Elmira, N.Y., nonparty-appellant pro se.
Edith McElduff, Elmira, N.Y., named in Action No. 2 as Edith Marie McElduff, plaintiff-appellant pro se in Action No. 1 and defendant-appellant pro se in Action No. 2. Nancy M. Eraca, Elmira, N.Y., nonparty-appellant pro se.
Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, Newburgh, N.Y. (William J. Larkin III of counsel), for respondent.
In two related actions for a divorce and ancillary relief, the wife appeals, and nonparty Nancy M. Eraca separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Orange County (Ecker, J.), dated December 22, 2011, as granted that branch of the husband's cross motion which was to disqualify Nancy M. Eraca as the wife's attorney in both actions pursuant to the advocate-witness rule.
*892ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
The nonparty-appellant's contention, in effect, that the husband waived the right to seek disqualification, is without merit under the circumstances of this case ( see M.A.C. Duff, Inc. v. ASMAC, LLC, 61 A.D.3d 828, 878 N.Y.S.2d 748;cf. Matter of Aaron W. v. Shannon W., 96 A.D.3d 960, 946 N.Y.S.2d 648;Matter of Lovitch v. Lovitch, 64 A.D.3d 710, 884 N.Y.S.2d 430).
“The disqualification of an attorney is a matter that rests within the sound discretion of the Supreme Court” ( Trimarco v. Data Treasury Corp., 91 A.D.3d 756, 756, 936 N.Y.S.2d 574;see Nationscredit Fin. Servs. Corp. v. Turcios, 41 A.D.3d 802, 839 N.Y.S.2d 523). In order to disqualify counsel pursuant to the advocate-witness rule, the moving party must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party ( see 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;Trimarco v. Data Treasury Corp., 91 A.D.3d at 757, 936 N.Y.S.2d 574;Daniel Gale Assoc., Inc. v. George, 8 A.D.3d 608, 609, 779 N.Y.S.2d 573). Here, the husband demonstrated that disqualification of Nancy M. Eraca as the wife's attorney was warranted. Accordingly, the Supreme Court properly granted that branch of the husband's cross motion which was for disqualification.