Connelly v Conneely

[*1] Connelly v Conneely 2004 NY Slip Op 50961(U) Decided on August 2, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 2, 2004
Supreme Court, Kings County

Michael G. Connelly, Plaintiff,

against

Maureen T. Conneely, Defendant



10537/03

David B. Vaughan, J.

Upon the foregoing papers in this action by plaintiff Michael G. Connelly (plaintiff) against defendant Maureen T. Conneely (defendant) for, inter alia, a declaratory judgment that a deed to certain real property is null and void or that he is entitled to 50% of the proceeds received by defendant from the sale of such property, defendant moves for summary judgment dismissing plaintiff's complaint as against her. Plaintiff cross-moves for summary judgment in his favor, or, in the alternative, for an order disqualifying the law firm of Connors & Sullivan, P.C. and Michael Connors, Esq. from any further representation of defendant, pursuant to DR 5-102 (A) (4), on the ground that they will be material witnesses against defendant at trial.

The decedent, Coleman Connelly, was born on June 4, 1918 in Ireland, and married Kathleen Donohue (Kathleen Connelly) in 1960. They had two children, defendant, their daughter, who was born in 1962, and plaintiff, their son, who was born in 1965. They lived together in a house, located at 730 54th Street, in Brooklyn, New York. In May 1978, Coleman Connelly executed a will, leaving his property to his wife, and, if she did not survive him, he [*2]directed that all of his property be divided equally between his two children. On April 4, 1989, Kathleen Connelly passed away. In 1988 or 1989, defendant moved out of the house, when she became engaged or was married to her husband, Michael Conneely. In 1994, plaintiff moved out of the house, when he became engaged or was married to his wife, Lauren Marie Marusic.

In March 1995, at her father's request, defendant, her husband, and their first child moved back into the house. Coleman Connelly allegedly asked defendant to move back into the house because he was alone. At that time, Coleman Connelly was 76 years old, and had diabetes and high blood pressure, for which he took regular medications, and he wore a hearing aid. Under their arrangement, Coleman Connelly did not charge defendant rent, and, in turn, defendant agreed that she would help care for him if and when his aging process required. Defendant and her husband had a second child, born on September 4, 1997. During this time period, plaintiff and his wife lived in their own home. They first lived in an apartment in Bay Ridge, and plaintiff would come to visit his father at the house about once every two weeks, and, later, when he and his wife and children moved to a house in Rockland County, he would come to visit his father about once a month. Defendant and plaintiff talked on the telephone on a daily basis.

In 1999, Coleman Connelly decided to make a new will, and defendant, at his request, made an appointment for him with the law firm of Connors & Sullivan, P.C., and accompanied him to their law office on May 15, 1999. Although defendant inquired of Michael Connors, Esq. as to whether the will could give her one year after her father's death to get out of the house before the house would have to be sold and the money divided between her and her brother, Coleman Connelly discussed his testamentary intentions separately with Michael Connors, Esq., and informed him that he, instead, wanted the subject real property to be given to defendant. On May 22, 1999, Coleman Connelly executed a deed transferring title to the real property to defendant, subject to a life estate of Coleman Connelly. On the same date, Coleman Connelly also executed a will. The will also devises the real property to defendant, and it divides the rest of Coleman Connelly's estate between plaintiff and defendant. It is undisputed that the will was duly executed by Coleman Connelly, and properly witnessed by three subscribing witnesses.

After the deed and will were executed, defendant continued to reside with Coleman Connelly. As her father aged and his health began to deteriorate, she assumed growing responsibilities in taking him to doctors, driving him places, helping him fill his prescriptions, and handling certain of his financial transactions. On June 5, 2000, Coleman Connelly fell out of bed, urinated on the bed and on himself, and exhibited noticeable swelling of his ankles. Defendant alleges that her father told her he did not wish her to call a doctor, but that she later called his regular physician, Dr. Edward T. Fitzpatrick, but that he did not call her back. On June 9, 2000, however, when Coleman Connelly's condition did not improve and continued to worsen, defendant called her brother, who was in the Hamptons, for help, and he told her that she should take him to the hospital. Defendant brought her father to the emergency room at Maimonides Hospital and he was admitted. Coleman Connelly suffered cardiac arrest at the hospital on June 10, 2000, and, later, had to be transferred to a rehabilitation center for a month's stay through late July. He then returned home to live with defendant, and, due to his deteriorated physical condition, home health aides attended him 24-hours-a-day.

Thereafter, Coleman Connelly became abusive to the home health aides, and defendant, reluctantly, considered placing her father in a nursing home. At that time, in late February or [*3]early March 2001, plaintiff first learned about the May 22, 1999 will, when, after plaintiff's wife expressed concern over losing the house to Medicaid once Coleman Connelly went into a nursing home, defendant informed plaintiff that the house was protected from Medicaid by his new will. On May 22, 2001, after a stay at a nursing home, Coleman Connelly died. Upon defendant's petition to probate the will of Coleman Connelly, plaintiff filed objections to the probate. By deed dated August 14, 2002, defendant sold the subject real property to Xing Yim and Chuen Yim for $338,000. At that time, plaintiff first learned of the earlier May 22, 1999 deed.

Consequently, in April 2003, plaintiff brought this action, seeking a declaratory judgment that the May 22, 1999 deed is null and void, or, if the real property has already been sold (as is

alleged), a declaratory judgment that he is entitled to 50% of the proceeds received by defendant from such sale and an injunction requiring defendant to deliver such proceeds to him, or a declaratory judgment that 100% of such sale proceeds must be deposited with the Surrogate's Court, Kings County, for the benefit of the estate of Coleman Connelly, including plaintiff, pro rata among the equal beneficiaries. The complaint alleges that defendant had a confidential and fiduciary relationship with Coleman Connelly, and that the execution of the May 22, 1999 deed was procured by undue influence, duress, and constructive fraud. A related matter concerning the probate proceeding of Coleman Connelly's will currently remains pending in the Surrogate's Court, Kings County. Defendant has moved for summary judgment, asserting that plaintiff has failed to produce any evidence demonstrating that she practiced constructive fraud, duress, or undue influence upon Coleman Connelly. Plaintiff has cross-moved for summary judgment, claiming that defendant has not met her burden of proof to show that the May 22, 1999 deed was not the product of fraud, duress, and/or undue influence, and for an order disqualifying the law firm and attorney representing defendant.

In addressing the motion and cross motion, the court notes that it has long been held that in order to establish undue influence:

"'It must be shown that the influence exercised amountedto a moral coercion, which restrained independent action and

destroyed free agency, or which, by importunity which could

not be resisted constrained the [donor] to do that which was

against his [or her] free will and desire, but which he [or she]

was unable to refuse or too weak to resist. It must not be the

prompting of affection; the desire of gratifying the wishes

of another; the ties of attachment from consanguity, or the

memory of kind acts and friendly offices, but a coercion

produced by importunity, or by a silent resistless power

which the strong will often exercises over the weak and

infirm, and which could not be resisted, so that the

motive was tantamount to force or fear . . . lawful

influences which arise from the claims of kindred

and family or other intimate personal relations are

proper subjects for consideration in the disposition

of [property], and if allowed to influence a [donor],

cannot be regarded as illegitimate or as furnishing [*4]

cause for legal condemnation'" (Matter of Walther,

6 NY2d 49, 53-54 [1959], quoting Children's Aid

Soc. v Loveridge, 70 NY 387, 394-395 [1877]).

The burden of proving undue influence generally rests with the party asserting its existence (Matter of Connelly, 193 AD2d 602, 602 [1993]). However, it has been held in the Court of Appeals case of Gordon v Bialystoker Center & Bikur Cholim, Inc. (45 NY2d 692, 698-699 [1978]) that under the doctrine of constructive fraud, where a confidential or fiduciary relationship exists between the decedent-donor and the defendant-donee so that they do not act from positions of equality, only slight evidence is required to shift to the defendant-donee the burden of proving by clear and satisfactory evidence that the transfer of the claimed gift was freely and voluntarily made and that it did not acquire the decedent's property by fraud, undue influence, or coercion.

The case of Matter of Gordon (45 NY2d at 698-700), though, involved an elderly decedent who suffered from mental and physical infirmities and weakness and who was under the defendant nursing home's complete control and care for her very livelihood and existence and where the nursing home recipient of the bequest was not a natural object of the decedent's bounty. Thus, cases following Matter of Gordon (45 NY2d at 698-699) have applied the doctrine of constructive fraud and the inference of undue influence where the circumstances showed that such scrutiny was mandated due to the unequal footing of the donor and donee, particularly where the donor would not be naturally disposed to make such a gift, such as where the donee was "a nice man" the donor met at the bank (Sepulveda v Aviles, 308 AD2d 1, 3 [2003]), a friend upon whom the decedent was dependent for all of the essentials of daily living (Matter of Mazax, 288 AD2d 682, 684 [2001]), the donor's home health aide (JML Investors Corp. v Hilton, 231 AD2d 493, 494 [1996]), the donor's attorney (Keating v Weinberger, 160 AD2d 675, 675 [1990]), or the draftsman of the will and the donee's accountant and financial advisor (Matter of Collins, 124 AD2d 48, 55 [1987]).

On the other hand, the inference of undue influence, requiring an explanation of a gift, does not generally arise from the confidential relationship between close family members, such as a father and daughter since "'[the] sense of family duty is inexplicably intertwined in this relationship which, under the circumstances, counterbalances any contrary legal presumption'" (Matter of Swain, 125 AD2d 574, 575 [1986], quoting Matter of Walther, 6 NY2d at 56; see also 39 NY Jur 2d, Decedents' Estates § 532). Thus, close family ties may negate the presumption of undue influence that would otherwise arise from a confidential or fiduciary relationship (see Matter of Walther, 6 NY2d at 56; Matter of Swain, 125 AD2d at 575). Where a familial relationship exists, it may only be viewed as a confidential or fiduciary relationship sufficient to shift the burden of establishing that the transaction was not the product of undue influence if coupled with other factors, such as where the donor is in a physical or mental condition such that he or she is completely dependent upon the defendant-donee for the management of his or her affairs and/or is unaware of the legal consequences of the transaction (see Peters v Nicotera, 248 AD2d 969, 970 [1998]; Matter of Connelly, 193 AD2d at 603; Loiacono v Loiacono, 187 AD2d 414, 414 [1992]; Hennessey v Ecker, 170 AD2d 650, 651-652 [1991]; Matter of Kurtz, 144 AD2d 468, 469 [1988]). [*5]

Plaintiff argues that the inference of undue influence based upon the holding of Matter of Gordon (45 NY2d at 698-699) should be applied in this case based upon the confidential and fiduciary relationship between Coleman Connelly and defendant. Such argument is rejected. Here, there was a close familial relationship between Coleman Connelly and defendant, with whom he resided (see Matter of Walther, 6 NY2d at 56; Matter of Posner, 160 AD2d 943, 944 [1990]; Matter of Swain, 125 AD2d at 575).

Plaintiff's contention that Coleman Connelly's advanced age and ill health made defendant her father's home health aide upon whom he was completely dependent and that, as a caretaker child, this inference of undue influence must be applied, is without merit. Any care rendered by defendant to Coleman Connelly was not done as a physician or home health aide, but as a daughter (see Matter of Camac, 300 AD2d 11, 12 [2002]). Moreover, there was not such a dependence upon defendant by Coleman Connelly at the time he executed the May 22, 1999 deed such that they dealt on an unequal footing. Coleman Connelly was not unable to care for himself when he signed the deed conveying his home to defendant.

Contrary to plaintiff's arguments, Coleman Connelly was not under the complete control of defendant. Plaintiff himself testified at his deposition that he never saw Coleman Connelly afraid of anyone nor did he ever see him being intimidated. Indeed, Coleman Connelly remained at plaintiff's home for three weeks in August 1999, three months following the deed's execution. In addition, defendant did not draft the deed or dictate its contents. Rather, the circumstances surrounding its execution indicate that it was the product of the free and unfettered act of Coleman Connelly (Matter of Walther, 6 NY2d at 54).

Despite plaintiff's efforts to portray his father as depressed, sickly, and totally dominated by defendant, there is abundant evidence that he was independent-minded, was not under any restraint or compulsion, and was well aware of what he was doing when he executed the May 22, 1999 deed, and that he made a conscious and independent choice to leave the property to his daughter to the exclusion of his son (see Matter of Mahnken, 92 AD2d 949, 949 [1983]). Michael Connors, Esq. testified at his deposition that Coleman Connelly expressed his estate planning desires to him and stated that he wanted to leave the house to his daughter, and that he did not want his son to get half the house and then force a sale. He stated that Coleman Connelly was not under any restraint, and that at the time of the execution of the deed, he was of sound mind. Sean Grogan, Esq. also testified that he witnessed both Coleman Connelly and defendant execute the deed, that Michael Connors, Esq. explained to Coleman Connelly that his son would have no interest in the property, and that, in his opinion, Coleman Connelly was of sound mind. Patrick Connelly, a friend of Coleman Connelly for over 25 years, and who visited him approximately 10 to 12 times per year until his death in May 2001, has also submitted his sworn affidavit, stating that Coleman Connelly was always of sound mind, memory, and understanding until he became ill in June 2000, and was not a timid man, and was never afraid to express his opinions or to communicate his wishes.

While it is true that Coleman Connelly was aged when he executed the deed, there is no proof that his mental faculties were impaired at that time (Matter of Palmentiere, 171 AD2d 871, 872 [1991]). Although Coleman Connelly may have lost weight prior to the execution of the May 22, 1999 deed and suffered from certain physical ailments, including diabetes, high blood pressure, and the wearing of a hearing aid, there is no evidence that this weight loss or these [*6]physical ailments impaired his mental capacity or in any way effected his ability to freely and voluntarily execute the deed (see Matter of Minasian, 149 AD2d 511, 511 [1989]).

Plaintiff only offers the affidavit of his purported expert neurologist, Aric Hausknecht, M.D., who opines that Coleman Connelly had chronic underlying dementia, which was exacerbated by an acute hypoxic schematic event that occurred on or about June 9, 2000. He also opines that in May 1999, Coleman Connelly was suffering from chronic illness, including poorly controlled diabetes, hypertension, coronary artery disease, cerebrovascular disease, cachexia, and depression, and that these conditions resulted in cerebral dysfunction with concomitant cognitive impairment.

Dr. Hausknecht, however, never knew Coleman Connelly, and never examined or treated him. Dr. Hausknecht's opinion is based only upon an examination of medical and hospital records and the deposition testimony. The medical and hospital records and deposition testimony do not support Dr. Hausknecht's opinion. As noted above, there is no evidence that any of Coleman Connelly's medical conditions which existed on May 22, 1999, at the time Coleman Connelly executed the deed, had any effect whatsoever on his cognitive abilities, or that any dementia, which was first exhibited following cardiac arrest on June 10, 2000, existed on May 22, 1999.

Dr. Hausknecht's opinion is purely speculative, and contradicted by the deposition testimony of Dr. Edward T. Fitzpatrick, Coleman Connelly's primary care physician from 1993 until the time of Coleman Connelly's death. Significantly, while testifying regarding his progress notes from February 4, 1999 and from an examination of June 2, 1999, Dr. Fitzpatrick found that Coleman Connelly was alert. There was no reference or indication of any mental infirmities in the testimony of Dr. Fitzpatrick until notations from July 26, 2000, 13 months after the execution of the deed. Dr. Fitzpatrick testified that he examined Coleman Connelly six times during the calendar year 1999; that during the time he treated him, he did not have cerebral dysfunction; and that during those six visits, Coleman Connelly responded to all of his questions appropriately, understood the results of the examinations and/or treatments, and that he was confident that Coleman Connelly knew what he was doing. He further stated that there was never a time during calendar year 1999 when he felt that Coleman Connelly was not competent enough to understand everything he spoke to him about, including his treatment, and had no reason to believe that Coleman Connelly would not have been able to execute legal documents in May 1999. In addition, Gary S. Gettenberg, M.D., Coleman Connelly's gastroentrologist, who examined Coleman Connelly on July 15, 1999, less than two months after the execution of the May 22, 1999 deed, reported, in his consultation report, Coleman Connelly's mental status as alert and made no mention therein of any confusion or mental incapacity. Thus, Dr. Hausknecht's opinion, which is based purely on speculation and is contradicted by the medical evidence and deposition testimony, is entitled to no weight (see Matter of Chiurazzi, 296 AD2d 406, 407 [2002]; Matter of Tracy, 221 AD2d 643, 644 [1995]; Matter of Swain, 125 AD2d at 576).

Plaintiff also argues that Coleman Connelly was mentally impaired at the time he executed the May 22, 1999 deed because of "his deluded notion" that plaintiff was going to force defendant to sell the house after he died. Such a notion, however, does not show any cognitive impairment. Rather, it was a rational and legitimate concern and reasonable for Coleman [*7]Connelly to assume that plaintiff would not continue to permit defendant to live in the house and not seek any financial benefit from it which could be realized from its sale. Coleman Connelly's decision to gift the house to defendant as a result of her expression of concern that she might be forced to move from her home could only be characterized as the desire of gratifying defendant's wishes, due to the promptings of affection and their close familial relationship (see Matter of Walther, 6 NY2d at 53-54; Matter of Posner, 160 AD2d at 944). Thus, the evidence is unrefuted that on the day Coleman Connelly executed the deed, he was of sound mind and fully aware of the nature and consequences of his actions in disposing of his property (see Matter of Minasian, 149 AD2d at 511).

Plaintiff also asserts that defendant had the opportunity and motive to exercise undue influence. "A mere showing of opportunity and even of motive to exercise undue influence [,however,] is insufficient to present a triable issue of fact, without additional evidence that such influence was actually exercised" (Matter of Philip, 173 AD2d 543, 543 [1991]; see also Matter of Walther, 6 NY2d at 55; Matter of Gross, 242 AD2d 333, 334 [1997]; Matter of Posner, 160 AD2d at 944).

Plaintiff further argues that he has put forth sufficient circumstantial evidence to raise a triable issue of fact as to undue influence by defendant. "Of course, undue influence may . . . be proved by circumstantial evidence . . . but this evidence must be of a substantial nature" (Matter of Walther, 7 NY2d at 54; see also Matter of Branovacki, 278 AD2d 791, 792 [2000]).

Plaintiff argues that the fact that he was out of the country when the May 22, 1999 deed and will were executed and that the execution of the deed and will were kept secret from him until after Coleman Connelly was either incapacitated or dead constitutes circumstantial evidence of undue influence. Such argument is unavailing. Defendant was under no duty to disclose her father's actions. Furthermore, there is no showing that the decision of both Coleman Connelly and defendant to not disclose this information to plaintiff was due to any fraudulent cover-up, as opposed to a mere attempt to prevent family acrimony and to avoid an unpleasant reaction by plaintiff to Coleman Connelly's choice. The case of Matter of Collins (124 AD2d at 54), relied upon by plaintiff, is inapposite since there, the accountant, financial advisor, and draftsman of the will, who was the recipient of the bequest, kept the will a secret from the conservator of the testator and actually sent the conservator a copy of another will, knowing that, at the time, it was already revoked by the new will he had drafted. Such unusual circumstances are not present here.

Plaintiff also relies upon the pre-existing May 1978 will of Coleman Connelly, which had a different distribution scheme, as evidence of undue influence. Such will, which was executed prior to Coleman Connelly's wife's death and his daughter's moving into the house, however, does not vitiate the validity of the May 22, 1999 deed (Matter of Minervini, 297 AD2d 423, 424 [2002]).

Plaintiff further argues that the fact that defendant brought Coleman Connelly to the law office of Connors & Sullivan, P.C. to execute the May 22, 1999 will and deed, under the supervision of an attorney he had never met before, which she paid for from a joint account with him that she controlled, shows undue influence. Such argument is rejected. The fact that the law firm of Connors & Sullivan, P.C. and Michael Connors, Esq. were strangers solicited by an appointment made by defendant, and that defendant accompanied Coleman Connelly to the law [*8]office does not support a finding of undue influence in view of the procedures followed in drafting and executing the deed (see Matter of Walther, 6 NY2d at 55). Furthermore, the unrefuted deposition testimony shows that it was Coleman Connelly who selected the law firm.

In addition, Coleman Connelly's failure to reveal the extent of defendant's assets to Michael Connors, Esq., the attorney drafting the May 22, 1999 will and deed, does not constitute evidence of undue influence. Such additional knowledge was not required for Michael Connors, Esq. to carry out Coleman Connelly's requested testamentary plan. The evidence discloses that Coleman Connelly fully expressed his intentions to Michael Connors, Esq. with respect to the real property at issue. Contrary to plaintiff's assertions, the fact that defendant had other assets, and would not have been left destitute if a sale of the house were forced, does not render Coleman Connelly's wishes to gift to her the home where she lived the product of a cognitively impaired mind or undue influence .

Plaintiff also argues that defendant systematically made withdrawals from Coleman Connelly's bank account from January 1998 forward, and that this constitutes evidence of undue influence. Defendant, however, at her deposition adequately explained the purpose of these withdrawals. Specifically, defendant's unrefuted deposition testimony shows that defendant had withdrawn the monies, at her father's request, to provide him with cash for his personal use, or was used by her to purchase medicine or necessary items for her father.

Plaintiff further asserts that there were prior similar acts of undue influence. In support of this assertion, plaintiff points to an August 1994 filing of a lawsuit in Ireland for damages to Coleman Connelly's real property there. Such lawsuit, which appears to have been instigated by defendant at Coleman Connelly's request, is irrelevant to and does not support a finding of undue influence herein. Similarly, the fact that Coleman Connelly executed a will in Ireland on August 24, 1994 with respect to that real property for purposes of commencing that lawsuit does not constitute evidence that undue influence was exercised at that time or with respect to the deed at issue.

Plaintiff next argues that defendant failed to seek prompt medical attention on June 5, 2000 for Coleman Connelly, when he showed signs of congestive heart failure, i.e., swelling of the ankles, and removed money from his checking account during the time period when she should have taken him to the hospital. Plaintiff claims that this was elder abuse, and that this also shows undue influence. Plaintiff's charges of elder abuse are completely unfounded. Defendant's decision to respect and abide by her father's wishes to not immediately go to a hospital or her failure to appreciate the full extent of his medical condition until June 9, 2000, when she took him to the hospital's emergency room, does not amount to elder abuse. Additionally, there is no showing that the funds withdrawn by defendant were not done with Coleman Connelly's express consent.

Thus, despite the voluminous submissions and the lengthy nature of plaintiff's papers, which the court has carefully perused, plaintiff has not presented a scintilla of evidence of undue influence sufficient to sustain his claim. Plaintiff's contention that the May 22, 1999 deed resulted from undue influence, duress, or fraud is supported by only speculative allegations and not by evidence demonstrating triable issues (Matter of Minervini, 297 AD2d at 424; Matter of Bustanoby, 262 AD2d 407, 408 [1999]).

"An inference of undue influence cannot be reasonably drawn from circumstances when [*9]they are not inconsistent with a contrary intent" (Matter of Branovacki, 278 AD2d at 793, quoting Matter of Ruef, 180 App Div 203, 204 [1917], affd 223 NY 582 [1918]; see also Matter of Walther, 6 NY2d at 56; Matter of Swain, 125 AD2d at 575). Here, the circumstantial evidence presented is entirely consistent with an influence that Coleman Connelly's May 22, 1999 deed conveying the subject real property to his daughter and excluding his son from such conveyance was the product of his affection and gratitude to her for her devoted daily companionship, care, and assistance to him at that time and for assuming these burdens and responsibilities for his care in the future as his health declined, and his desire to permit her to remain in the home where she lived, and not be pressured into its sale by his son, who lived independently from them and was not subjected to these daily burdens.

While plaintiff is undoubtedly disappointed by his father's choice not to give him or his children a share in the house where he did not reside, and to, instead, reward his daughter for assuming primary responsibility for assisting him in his daily needs, this does not provide a basis to bring a lawsuit unfairly charging defendant with undue influence. Therefore, since there is no real issue as to the mental capacity of Coleman Connelly at the time he executed the subject deed and no supportable inference of fraud, duress, or undue influence, defendant is entitled to summary judgment dismissing plaintiff's complaint as against her (see CPLR 3212 [b]; Matter of Walther, 6 NY2d at 56; Mandell v Finkel, 298 AD2d 365, 366 [2002]; Matter of Minervini, 297 AD2d at 424; Matter of Philip, 173 AD2d 543, 543 [1991]; Matter of Swain, 125 AD2d at 576).

Accordingly, defendant's motion for summary judgment dismissing plaintiff's complaint as against her is granted. In view of this disposition, plaintiff's cross motion, insofar as it seeks an order disqualifying the law firm of Connors & Sullivan, P.C. and Michael Connors, Esq. from any further representation of defendant, pursuant to DR 5-102 (A) (4), on the ground that they will be material witnesses against defendant at trial, is rendered moot. Plaintiff's cross motion, insofar as it seeks summary judgment in his favor, is denied.

This constitutes the decision, order, and judgment of the court.

E N T E R,

J. S. C.