Duffy v County of Nassau

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Duffy v County of Nassau 2012 NY Slip Op 30983(U) April 3, 2012 Supreme Court, Nassau County Docket Number: 9434/10 Judge: Antonio I. Brandveen Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: ANTONIO I. BRANDVEEN 1. S. C. TRIL / IAS PART 29 RYAN DUFFY NASSAU COUNTY Plaintiff Index No. 9434/10 against Motion Sequence No. 002 COUNTY OF NASSAU , BRIAN GUBELLI ANDREW GUBELLI , THOMAS GUBELLI , JOHN DOE POLICE OFFICERS 1- , and JOHN DOE POLICE SUPERVISORS 1- Defendants. The following papers having been read ?n this motion: Notice of Motion , Affidavits , & Exhibits Answering Affidavits. . . . . . Replying Affidavits Briefs: Plaintiffs / Petitioner s. . Defendant's / Respondent's. . . . . The defendant Andrew Gubell moves to dismiss the complaint on the ground the plaintiff refused to comply with the September 6 , 2011 preliminary conference order including medical reports , medical authorizations , interrogatory responses and deposition. Gubell also moves to consolidate for ajoint trial ofthe action with a companion case Gubell v. Reale, et al. index number 7210/10 presently assigned to Nassau County Supreme Court Justice Karen V. Murphy. Gubell further moves to disqualify the plaintiffs counsel because of a conflct of interest. The Court determines the plaintiff provided Andrew Gubell with some responses to [* 2] the interrogatories and discovery notice. The Court finds the plaintiffs counsel agreed to produce the plaintiff for a February 28 2012 deposition , and conceded the plaintiff had not received any medical treatments for his injuries which obviated some of the discovery demanded by Andrew Gubell. However , plaintiffs counsel failed to provide a verification page of the complaint , school record authorizations , employment records authorizations and the responses to interrogatories , specifically the acts Andrew Gubell allegedly committed which entitle the plaintiff to punitive damages and identifying the person that prepared the responses to the interrogatories. The Court finds the plaintiff s discovery responses are incomplete regarding the defense demands and the September 6 , 2011 preliminar conference order. Gubelli v. Reale, et al. index number 7210/10 The underlying personal action and which was commenced before the instant action arises from the same May 15 2009 Baldwin , New York incident. " When there are common questions of law or fact , a joint trial is warranted unless the opposing part demonstrates prejudice Nyack Waterfront Assoc. D.3d 855 856 , 887 N. North Side Sav. Bank v 225 AD2d 603 (1996); (Pierre-Louis 203 AD2d 439 (1994))" (see Ryckman v Glussi v Fortune Brands 276 AD2d 586 , 587 (2000); Schlessinger-Levi-Polatsch- Tydings to a substantial right v DeL ongh i Am., Inc. , 66 2d 632 (2d Dept , 2009)). Here , there is no showing of prejudice to the plaintiff or the codefendants with a joint trial of both actions. Moreover any prejudice would be outweighed by the possibilty of inconsistent verdicts if separate trials were held , and the trial Court could mitigate any prejudice by suitable jury instrctions Page 2 of 5 [* 3] 2d ---- 2012 WL 1021026 (2d Dept , 2012)). The Court (see Clark v. Clark --- N. Gubell v. Reale, et al. determines the instant personal injury action should be paired with index number 7210/10 for ajoint trial of the action. Although' ( a) part' s entitlement to be represented in ongoing litigation by counsel of his or her own choosing is a valued right which should not be abridged ' such right wil not supersede a clear showing that disqualification 2d 356 (Matter of Marvin Q. 45 A. D.3d 852 853, 846 N. 2d 498; quoting Campolongo v. Campolongo 2 A. D.3d 476 476 , 768 N. 2d 379 , 391 N. E.2d see Greene v. Greene 47 N. 2d 447 453 418 N. , LLC v. Town of Rhinebeck , 85 1355; Matter of Astor Rhinebeck Assoc. Horn v. Municipallnfo. Servs. , 282 D.3d 1160 , 1161 925 N. 2d 320). " (A) part seeking disqualification of its 2d 712 , 724 N. adversary s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving part and opposing counsel , (2) that the matters involved in both representations are substantially related , and (3) that the interests of the present client and former client are materially adverse Landis 89 N. 2d 123 , 131 651 N. (TekniRules of Professional Conduct (22 NYCRR 1200. 954 674 N. 2d 839 , 893 Falk v. Chittenden 11 N. Y.3d 73 , 78 , 862 N. Jamaica Pub. Servo CO. V. AIU Ins. Co. 92 N. 2d 631 636 684 N. 2d 459 , 707 N. 2d 414) 2d 639 (2d Dept , 2011). 88 A. D.3d 782 , 784 , 930 N. Scopin is warranted" S.2d 896; Plex, Inc. v. Meyner 2d 663; see rule 1.9(a); E.2d 116; V. Goolsby, While the right to choose one s counsel is not absolute , disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties ' substantive rights , thus requiring any restrictions to be carefully scrutinized (see S & S Hotel Ventures Ltd. Partnership V. 777 2d 735 508 N. E.2d 647). The part Corp. 69 N. 2d 437 443 515 N. seeking to disqualify a law firm or an attorney bears the burden to show (see Aryeh v. Aryeh, supra; Petrossian V. Grossman 219 A. 2d 587 588 631 N. S.2d 187). Whether or not to disqualify an attorney or law firm is a matter which rests in the (see Olmoz V. Town of Fishkill 258 A. D.2d 447 684 N. 2d 611) 2d 903J2d Dept , 2006). Gulino V. Gulino 35 A. D.3d 812 826 N. sufficient proof to warrant such a determination sound discretion of the court Here , the plaintiffs counsel here does not dispute he represents four different individuals with potentially conflcting interests in the instant action and Page 3 of 5 Gubell V. Reale, et al. index [* 4] number 7210/10. Rather , the plaintiffs counsel here states , in a January 23 , 2012 affirmation , any potential conflcts he may have were fully disclosed to his clients , and the clients agreed to proceed with his representation. The Court notes Andrew Gubell' counsel represents two plaintiffs , the alleged assault vk:tlm and police officer in Gubell Reale, et al. index number 7210/10 , and the codefendants in the instant action. Here Andrew Gubell fails to sustain his burden showing disqualification the plaintiffs counsel here is waranted. Andrew Gubell has not shown the clients ' interests of the plaintiff s counsel here are materially adverse. It is well settled that an attorney may not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a member of his (see Code of Professional Responsibilty Solomon v New Bril v Friends World ColI. DR 5York Prop. Ins. UnderwritingAssn. 118 AD2d 695), and once representation is undertaken , the lawyer must withdraw as advocate if it appears that he must testify on behalf of his own client , or if it appears that he wil be called as a witness to testify for the adverse part, where his testimony may b prejudicial to the client he is representing (People v Paperno , 54 NY2d 294 2d 324 (2d Dept, 1988). Matter of Bartoli 143 A. 2d 830 831 533 N. firm ought to be called as a witness 133 AD2d 729; 101 (B); , 300) The plaintiff s counsel here was a criminal attorney for some of the same parties in a related criminal proceeding to this instant civil action. The attorney for Andrew Gubell indicates the issue of the plaintiff counsel' s representation in the criminal proceeding may be material here in the civil litigation , and the plaintiff s counsel cannot be a witness and an attorney in the same proceeding. However , the attorney for Andrew Gubell provides an insufficient showing that the plaintiff s counsel wil testify on behalf of his own client , or he wil be called as a witness to testify for an adverse part. Accordingly, Page 4 of 5 that portion of the motion to [* 5] disqualify counsel for the plaintiff is denied. The plaintiff is , however , directed to fully comply with the September 6 , 2011 preliminary conference order , including school record authorizations , employment records authorizations and the responses to interrogatories , specifically the acts Andrew Gubell allegedly committed which entitle the plaintiff to punitive damages and identifying the person that prepared the responses to the interrogatories within 30 days after service of a copy of this order with notice of entry, otherwise the verified complaint is dismissed. A joint trial is ordered for Gubell v. Reale, et al. index number 7210/10 and the instant action in the interest of judicial economy. Each action shall maintain its separate index number and separate caption So ordered. Dated: April 3, 2012 ENTER: NON FINAL DISPOSITION ENTERED APR 0 9 2012 NASSAU COUMl' COY"TY CLeRK' S OFFICI. Page 5 of 5

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