Recitation as Required by CPLR §2219(a): The following papers were read on this Motion to Disqualify and Cross-Motion for Summary Judgment: Papers Numbered Defendant’s Notice of Motion, Affirmation in Support, and Exhibits 1 Plaintiff’s Notice of Cross-Motion, Affirmation in Opposition to Defendant’s Motion and in Support of Plaintiff’s Motion, and Exhibits 2 Defendant’s Affirmation in Opposition to Cross-Motion 3 DECISION/ORDER Upon the foregoing cited papers, the Decision/Order of this Court is as follows: Defendant moves for an order disqualifying plaintiffs’ counsel from representing either plaintiff in this action on the basis that an alleged impermissible conflict of interest exists that prohibits said representation. Plaintiffs oppose the motion and argue that each of the plaintiffs have executed waivers acknowledging the conflict and choosing to proceed with joint representation nonetheless. Plaintiffs also cross-move for summary judgment on liability, and argue that the plaintiffs’ vehicle was rear-ended by defendant. Plaintiffs also contend that defendant fails to set forth a non-negligent explanation for the collision. Plaintiff posits that once summary judgment on liability is granted, there will no longer be any conflict of interest regarding representation of both clients. Additionally, plaintiff seeks dismissal of defendant’s counterclaim against plaintiff FANNY SANCHEZ-PENA, or in the alternative, leave of the Court to file an answer to the counterclaim, which is admittedly late. Procedural History On December 18, 2018, plaintiffs originally commenced this personal injury action in Supreme Court under Index No. 34320/2018E. On November 4, 2019, defendant moved for summary judgment solely on the issue of whether plaintiffs met the serious injury thereshold as defined by New York Insurance Law §5102(d). Plaintiffs opposed that motion and subsequently filed Note of Issue certifying that this matter was trial ready on January 20, 2020. Defendant’s threshold motion was resolved via order dated May 21, 2020 (Briganti, J.). Said order granted defendant’s motion to the extent of dismissing the claims of both plaintiffs under the permanent loss of use category of serious injury, and the claim of plaintiff SANCHEZ-PENA under the permanent consequential limitation category of serious injury. On November 28, 2022, defendant filed an Order to Show Cause (“OSC”) in Supreme Court seeking the same relief sought in the instant motion (to wit: disqualification of plaintiffs’ counsel). The following day, prior to the order to show cause being heard, the matter was transferred to Civil Court for trial pursuant to CPLR §325(d) and the OSC was never ruled on. Thereafter, the instant application was made via notice of motion returnable in Civil Court. Defendant’s Motion to Disqualify Defendant seeks to disqualify plaintiffs’ counsel because an alleged impermissible conflict of interest exists. Defendant contends the plaintiffs’ interests are adverse to each other as driver and passenger in the same vehicle. In support, defendant highlights its existing counterclaim against the plaintiff driver SANCHEZ-PENA. Defendant claims said plaintiff’s pecuniary interests conflict with those of passenger plaintiff, BASORA who was a presumably innocent passenger in the same vehicle. Defendant contends that the passenger plaintiff should have been advised to assert claims against both drivers of the two vehicles. Defendant further argues that the dual representation in this matter violates the disciplinary rules and warrants the removal of counsel from representing either plaintiff. Plaintiffs oppose the motion by arguing that no true conflict exists and that the representation is permissible because the plaintiffs are united in interest in that: (1) they both allege that the defendant is 100 percent at fault and, (2) that the counterclaim has no merit. Additionally, plaintiffs submit notarized waivers acknowledging a potential conflict of interest at the time of plaintiffs’ counsel’s retention and waiving the same. Plaintiffs also submit individual affidavits setting forth that they are each aware of the instant motion and that each plaintiff still wants plaintiffs’ counsel to continue representing them both. Plaintiffs’ Cross-Motion for Summary Judgment and/or to Dismiss Plaintiffs also cross-move for summary judgment on liability and on defendant’s counterclaim. Plaintiffs argue that because this was a rear end collision, and defendant has failed to set forth a non-negligent explanation for the contact with their vehicle, plaintiffs are entitled to summary judgment. Alternatively, plaintiffs move to dismiss the defendant’s counterclaim as abandoned because defendant failed to seek default judgement within a year. In the alternative, plaintiff SANCHEZ-PENA seeks time to file an answer to the counterclaim. Defendant argues in opposition to plaintiffs’ cross-motion that the counterclaim has not been abandoned and further that because liability has not been determined, dismissal at this juncture would not serve judicial economy. In the alternative to dismissal, defendant argues that the counterclaim should be procedurally converted to third-party claims against plaintiff SANCHEZ-PENA. Legal Standard The proponent of a motion for summary judgment must tender sufficient evidence in admissible form to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [NY 1986]; Winegrad v. New York University Medical Center, 64 N.Y.2d 851 [NY 1985]). Once this showing has been made the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material facts which require a trial of the action (Zuckerman v. City of New York, 49 N.Y. 2d 557 [1980]). A mere conclusory assertion devoid of evidentiary facts, is insufficient to defeat a well-supported summary judgment motion as is reliance upon surmise, conjecture or speculation (Grullon v. City of New York, 297 A.D.2d 261 [1st Dep't. 2002]). Summary judgment is a drastic remedy that deprives a litigant of his or her day in court. Therefore, the party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to non-moving party (Assaf v. Ropog Cab Corp., 153 A.D.2d 520 [1st Dept. 1989]). It is well settled that issue finding, not issue determination, is the key to summary judgment (Rose v. Da Ecib USA, 259 A.D. 2d 258 [1st Dept. 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [NY 1957]). Analysis of Plaintiff’s Cross-Motion for Summary Judgment In the interest of judicial efficiency and economy, the Court will address the plaintiffs’ cross-motions first. Initially, the branches of plaintiffs’ cross-motion seeking summary judgment are denied. CPLR §3212 provides that any party may move for summary judgment after issue has been joined, and absent a shorter deadline set by the Court, such motion shall be made no later than one hundred twenty days after the filing of the Note of Issue, except with leave of court on good cause shown. That “good cause” in CPLR §3212(a) requires a showing of good cause for the delay in making the motion — a satisfactory explanation for the untimeliness — rather than simply permitting meritorious, nonprejudicial filings, however tardy (Brill v. City of New York, 2 N.Y.3d 648, 652 [2004]). Here, Note of Issue was filed three and a half years ago. Plaintiffs have not sought leave of the Court to file the instant motion, nor have plaintiffs set forth any explanation for the untimeliness of the motion. While the Court acknowledges that the initial 120 day time limit to make the motion expired during the initial few months of the COVID-19 pandemic, normal court operations have long since resumed and any related tolling provisions have long elapsed. In accordance with the above, the branches of plaintiffs’ motion seeking summary judgment on liability and on defendant’s counterclaim are denied as untimely. Analysis of Plaintiffs’ Cross-Motion to Dismiss The branch of plaintiff’s motion seeking dismissal of defendant’s counterclaim is also denied. Plaintiff cites CPLR §3215 in support of its argument. CPLR 3215(c) provides, in pertinent part, that: “[i]f the plaintiff fails to take proceedings for the entry of judgment within one year after the default, the court…shall dismiss the complaint as abandoned…unless sufficient cause is shown why the complaint should not be dismissed.” Plaintiff argues that because the defendant failed to move for a default judgement within one year, the counterclaim should be dismissed as abandoned. However, a party may waive the right to seek dismissal pursuant to CPLR 3215(c) by serving an answer or taking any other steps which may be viewed as a formal or informal appearance (Bank of Am., N.A. v. Lichter, 192 A.D.3d 957, 140 N.Y.S.3d 775 [2nd Dep't., 2021]). When the conduct of the parties sufficiently demonstrates that there was no intention to abandon the action, denial of a CPLR §3215 motion to dismiss as abandoned is a proper exercise of the court’s discretion (See Bd. of Managers of Baychester Villas Condominiums I & II v. Gerald Caliendo Architects & Planners, 201 A.D.3d 457, 457-58 [1st Dep't., 2022] holding plaintiff indicated their intent to pursue the action against the nonappearing defendants by conducting discovery with the two appearing defendants; St. Snacks, LLC v. Bridge Assocs. of Soho. Inc., 156 A.D.3d 556, 557 (1st Dep’t., 2017) finding negotiations between the parties demonstrated that plaintiff did not abandon this action, and thus shows sufficient cause why the complaint should not be dismissed; Hinds v. 2461 Realty Corp., 169 A.D.2d 629, 632 [1st Dep't., 1991]) affirming denial of motion to dismiss as abandoned where there was ongoing contact between plaintiff’s counsel and defendant’s insurer sufficiently indicating there was no intention to abandon the claim). Here, there has been active litigation of this matter for nearly five years, including conducting depositions of all parties involved. There has been no evidence presented to the Court that the defendant ever made any representations that it intended to abandon the counterclaim at any point during those five years of litigation. Moreover, defendant’s counterclaim consists of an assertion of liability against the plaintiff driver, as well as a demand for indemnification and/or contribution in the event that the plaintiffs are granted judgment. In moving to dismiss the counterclaim, plaintiffs are essentially seeking summary judgment on liability, which this Court has already denied in accordance with the rationale set forth hereinabove. Accordingly, plaintiffs’ motion to dismiss the counterclaim is also denied. Notwithstanding the above, the branch of plaintiff’s motion seeking leave to file an answer is granted. Defendant did not oppose that branch of plaintiffs’ motion. Nor can the Court discern any prejudice to defendant that would result from allowing the same. Therefore, the answer annexed as plaintiffs’ Exhibit E to the cross-motion is deemed served and filed, nunc pro tunc. Analysis of Defendant’s Motion to Disqualify Turning to the motion to disqualify. Determining whether to disqualify an attorney is a matter which lies within the sound discretion of the court (Matter of Madris v. Oliviera, 97 AD3d 823, 825 [2nd Dep't., 2012]). The right to counsel of choice is not absolute and may be overridden where necessary — for example, to protect a compelling public interest — but it is a valued right and any restrictions must be carefully scrutinized (S & S Hotel Ventures Ltd. P’ship. v. 777 S.H. Corp., 69 N.Y.2d 437, 443 [1987]). 22 NYCRR 1200.24[A] is the main provision governing the professional responsibility of attorneys in New York when issues of conflict between multiple clients arises. This section provides in relevant part: “A lawyer shall not represent a client if a reasonable lawyer would conclude that the representation will involve the lawyer in representing differing interests… Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.” Because dual representation is fraught with the potential for irreconcilable conflict, it will rarely be sanctioned even after full disclosure has been made and the consent of the clients obtained (Greene v. Greene, 47 N.Y.2d 447, 451-52 [1979]). Here, defendant has established that an impermissible conflict of interest exists that warrants disqualification of plaintiffs’ counsel in this matter. The dual representation of a driver and passenger constitutes a conflict of interest warranting the removal of counsel from further representation of both clients (See Quinn v. Walsh, 18 A.D.3d 638 [2nd Dep't., 1995]). While the Court notes the motion to disqualify is being made late in this litigation, and the Court does not condone the delay, the outcome remains the same. Plaintiffs, as driver and passenger in the same vehicle have differing pecuniary interests. While plaintiffs’ counsel is correct that if the counterclaim did not exist, there would be no conflict, that is a hypothetical situation where the outcome of which has no relevancy in this matter, because a viable counterclaim does in fact exist. An attorney must avoid not only the fact, but even the appearance, of representing conflicting interests (Rotante v. Lawrence Hosp., 46 A.D.2d 199, 201 [1st Dep't., 1974]). Moreover, and contrary to plaintiffs’ contention, the prior years of litigation in this matter have not proven that counsel can competently and diligently represent both clients given the current procedural posture of this case. The facts here are analogous to those in Ferrara v. Jordache Enterprises Inc., 819 N.Y.S.2d 421, 423 (Sup. Ct. Kings County 2006). In Ferrara, both driver and passenger were represented by the same attorney who similarly argued that there was no possibility of any viable counterclaim or suit between the plaintiffs, and therefore the joint representation was permissible. In a persuasive decision granting the motion to disqualify, the trial court reasoned that where the driver is not joined as a defendant, the plaintiff passenger may well lose a valuable opportunity for recovery if in fact the other driver is exculpated. That is precisely the scenario presented in this matter since liability remains undecided. Indeed, once brought to the attention of the court, resolution of the conflict is paramount (See Tavarez v. Hill, 870 N.Y.S.2d 774, 778 [Sup. Ct. Bronx County 2009]). In Tavarez, the court sua sponte stayed a motion for summary judgement until there was a resolution of a potential conflict of interest issue arising from plaintiffs’ counsel’s representation of multiple parties in the same action. The Court noted that an attorney who undertakes to represent a driver and passenger, and thereafter fails to obtain summary judgment or a concession by the defendant on the issue of liability, will subject himself/herself to adverse consequences, including the potential for a mistrial (Id.). Plaintiffs’ counsel’s reliance on prior decisions issued in its favor in other joint representation matters is not persuasive. Plaintiff’s reliance on Senior v. Bailon (No. 52535/2020, 2020 WL 13544541, at *1 [N.Y. Sup. Ct. Nov. 12, 2020]) in support of its position to allow joint misrepresentation is misplaced. In that case, the court allowed the joint representation of a driver and their passenger because the passenger had no redress against the driver due to their co-employee relationship, with the Court specifically noting, “the conflicts that form the basis for a disinterested lawyer from believing that he or she can competently represent the interest of each client are not present in this case.” Unlike the facts of Senior, here there is no co-employee relationship alleged that would automatically preclude the presumably negligence free passenger plaintiff from recovering from both drivers, and therefore, the very conflict that was missing in Senior is indeed present here. Nor is the Court persuaded by the decision and order dated October 27, 2022 (McDonald, J.) in Almonte v. Church, Index No. 728555/2021 (Sup. Ct., Queens Co.) submitted as plaintiff’s Exhibit G. Said decision vacated a prior order granting the same relief sought herein, for the same type of conflict that also exists in this matter. However, plaintiffs’ reliance thereon is also misplaced. While the court did indeed vacate the prior order, said order was entered on default and the court noted the strong public policy of deciding cases on the merits in its decision to vacate. Moreover, to vacate a default judgment, the moving party must provide only a potentially meritorious defense (See Marvin Neiman P.C. v. Baby Ave., Ltd., 161 A.D.2d 529, 555 [1st Dep't., 1990] emphasis added). In vacating the default judgment, the court did not make any final substantive findings as to the sufficiency of the evidence of client waivers that plaintiffs submitted in opposition. Even assuming arguendo that the court in Almonte found a permissible waiver of the conflict based on the evidence presented, the proofs submitted by plaintiffs here do not withstand such scrutiny as discussed immediately below. First, the waivers executed by plaintiffs herein are general, blanket waivers, which include permission for the attorney to represent one client against the other if circumstances arise. Second, apart from the substantive issues regarding the waivers, the Court notes that the same are printed in the English language. Notably, both plaintiffs required the use of a Spanish interpreter when they appeared for depositions. There is nothing in the record before this Court to establish that the waivers were properly translated to the Spanish language for plaintiffs to review prior to their execution. The same issue applies to the affidavits submitted for the continued waiver. In addition to being in the English language, both affidavits set forth that each plaintiff has been advised that the counterclaim is “completely without merit.” While this interpretation of the facts would be accurate if plaintiffs had summary judgment on liability, they do not. Under these circumstances, the Court cannot conclude that the plaintiffs have knowingly waived the conflict of interest present in this case. Conclusion In accordance with the above, defendant’s motion to disqualify plaintiffs’ counsel from representing either plaintiff in this matter is granted in its entirety. This matter is stayed for 60 days for plaintiffs to seek new and separate trial counsels. Plaintiffs’ cross-motion is granted only to the extent of deeming plaintiff SANCHEZ-PENA’s answer to the counterclaim served and filed. The remainder of plaintiffs’ motion is denied. Defendant shall serve a copy of this order on plaintiffs’ counsel with notice of entry within ten (10) days of the entry date hereof. The parties are reminded that this matter is scheduled for a conference in Part 21 on November 9, 2023. This constitutes the decision and order of the Court. Dated: August 8, 2023
