The following e-filed papers read herein: NYSCEF Doc. No. Notice of Motion, Affirmation and Exhibits 40-50 Affirmation in Opposition, Memorandum of Law and Exhibits 75-82 Reply Affirmation 85 In this medical malpractice action, plaintiff Walid Tarek Hamed moved, in motion sequence #2, pursuant to Disciplinary Rules 1.7(a)(1) and 1.7(b)(3), to disqualify the New York State Office of the Attorney General (“OAG”), from representing defendant Rainer W.G. Gruessner, M.D. (“Dr. Gruessner”) due to an alleged conflict of interest. The OAG opposed the motion. This action arises from a two-day, two-part surgical procedure — a pancreatectomy and islet cell transplant — performed on January 15, 2019 and January 16, 2019, at the State University of New York Downstate Medical Center. Plaintiff alleges that he sustained a permanent left brachial plexus nerve injury due to defendants’ departures from good and accepted medical practice. Dr. Gruessner and a non-party private attending surgeon Dr. Alexander Schwartzman performed the procedure. The anesthesiologists were co-defendants Geraldine C. Diaz, M.D. and Ketan Shevde, M.D. Plaintiff also filed a Court of Claims action against the State of New York arising from the same surgical procedure and injuries alleged herein. The OAG filed an answer on behalf of the State of New York. A Stipulation of Conditional Dismissal conditionally dismissed the Court of Claims action. Dr. Gruessner commenced a wrongful termination and retaliation action against the State University of New York and SUNY Downstate Health Sciences University, wherein he alleged that he was terminated due to complaints to expose the medical center for failing to comply with regulatory requirements regarding patient care and safety. The action was filed in the Kings County Supreme Court and later transferred, by Order, to the Court of Claims. The OAG does not represent any party in this action. As a result of the foregoing, plaintiff asserts that a conflict of interest exists on the part of the OAG if it continues to defend Dr. Gruessner in the present action while defending the State of New York in plaintiff’s Court of Claims action. The Rules of Professional Conduct govern conflicts of interest between attorneys and clients. Rule 1.7(a)(1) states “a lawyer shall not represent a client if a reasonable lawyer would conclude that…the representation will involve the lawyer in representing differing interests.” Rule 1.7(b)(3) states that “notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if…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.” “The disqualification of an attorney is a matter that rests within the [court's sound discretion].” Alnoukari v. Nokari, 218 A.D.3d 527, 191 N.Y.S.3d 174 (2d Dept. 2023). Further, “[a] party’s right to be represented by counsel of his or her…choosing is a valued right which will not be superseded absent a clear showing that disqualification is warranted.” Halberstam v. Halberstam, 122 A.D.3d 679, 995 N.Y.S.2d 738 (2d Dept. 2014). See also Sakandar v. American Transit Insurance Company, 217 A.D.3d 1005, 191 N.Y.S.3d 742 (2d Dept. 2023); Kaikov v. Yadgarov, 216 A.D.3d 926, 188 N.Y.S.3d 680 (2d Dept. 2023). “The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination.” Marotta v. Marotta, 218 A.D.3d 468, 193 N.Y.S.3d 134 (2d Dept. 2023). “The basis for a disqualification motion is the alleged breach of the fiduciary duty owed by an attorney to a current or former client.” HSBC Bank USA, N.A. v. Santos, 185 A.D.3d 475, 128 N.Y.S.3d 2 (1st Dept 2020) citing Rowley v. Waterfront Airways, Inc., 113 A.D.2d 926, 493 N.Y.S.2d 828 (2d Dept. 1985). “When the firm sought to be disqualified ha[s] never represented the moving party, that firm owes no duty to that party. And it follows that if there is no duty owed, there can be no duty breached.” Sentry at QB, LLC v. Wu, ___ N.Y.S.3d ___, 2023 N.Y. Slip Op 04225 (2d Dept. 2023). The OAG did not represent plaintiff in this action or the Court of Claims action, and plaintiff showed no evidence of an existing, prior or present client-attorney relationship between him and the OAG in any other actions. Thus, the Court finds that plaintiff lacked standing to seek disqualification of the OAG based upon a conflict of interest. As such, no duty was breached on behalf of plaintiff. Still, the court may disqualify the OAG if it finds a conflict of interest warranting disqualification. HSBC Bank USA, N.A., 185 A.D.3d 475. Here, disqualification of the OAG is not warranted at this juncture. Koumantaros v. Hephaistos Developing, LLC, 203 A.D.3d 907, 161 N.Y.S.3d 797 (2d Dept. 2022) (Party failed to submit evidence sufficient to sustain its burden of demonstrating that disqualification was warranted.). Dr. Gruessner’s and the State of New York’s interests are aligned concerning the allegations plaintiff made in the instant action and those in the Court of Claims action. Moreover, the Court of Claims action was conditionally dismissed because the disposition of this action may render it moot. Lastly, the OAG is not representing the State University of New York and SUNY Downstate Health Sciences University against Dr. Gruessner’s wrongful termination and retaliation action. Besides, Dr. Gruessner, during his November 5, 2021 deposition in this action, stated that the removal of his surgical privileges did not involve the care, treatment, or surgery rendered to plaintiff, nor was it cited as a basis for his removal. Accordingly, it is ORDERED that plaintiff’s motion to disqualify the New York State Office of the Attorney General from representing Dr. Gruessner is denied. This constitutes the Decision and Order of the Court. Dated: September 6, 2023
