Ramos v Villacampa

[*1] Ramos v Villacampa 2008 NY Slip Op 50219(U) [18 Misc 3d 1128(A)] Decided on February 7, 2008 Supreme Court, Richmond County Minardo, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 7, 2008
Supreme Court, Richmond County

Donna Ramos and her spouse Pedro L. Ramos, per quod, Plaintiffs,

against

Thomas Villacampa and Pedro L. Ramos, Defendants.



100310-06

Philip G. Minardo, J.

This matter arises out of a two vehicle accident which occurred on February 2, 2003, at or near the intersection of Dubois Avenue and Floyd Street, in Staten Island, New York. As a result, plaintiff Donna Ramos claims to have sustained extensive personal injuries while riding as a passenger in a vehicle owned and operated by her husband, Pedro L. Ramos ("Ramos"). The other vehicle involved in the accident was allegedly owned and operated by defendant Thomas Villacampa. It is undisputed that Mr. Ramos is named both a plaintiff and defendant in the action, the former seeking damages for the loss of his wife's services and the latter as contributing to the happening of the accident.

In moving for the dismissal of the action against him as a defendant pursuant to CPLR 3211(a)(5), Ramos contends that the three-year statute of limitations has expired. Specifically, Ramos claims that although the index number was purchased and the pleadings were filed nine days before the statute of limitations was to expire (i.e., on January 24, 2006), service of the summons and complaint was never properly effectuated upon him since (1) the purported service upon his wife, Donna, as a person of suitable age and discretion on January 29, 2006 was not accompanied by a proper affidavit of mailing under CPLR §308(2), and (2) the out-of-state process server failed to affix the required certificate of authority mandated by CPLR §2309 (c) to his affidavit of service. In addition, Ramos claims that the action should be dismissed as a result of plaintiffs' failure to move for a default judgment within one year as required by CPLR §3215 (c).

Alternatively, defendant Ramos seeks an order disqualifying the law firm of Herbert I. [*2]Ellis, P.C. from representing either plaintiff in this action.

In response to the motion, co-defendant Villacampa asks this Court to convert his cross claim(s) against defendant Ramos into a third-party action in the event that his motion is granted, and to disqualify the law firm of Herbert I. Ellis, P.C. from representing either plaintiff.

In opposition to the dismissal motion, plaintiffs argue, inter alia, that they would be severely prejudiced if the case were dismissed based upon such "minor, inconsequential technicalit[ies]" as the failure to comply with CPLR §2309 (c) and/or the process server's failure to check the appropriate box on the pre-printed form and re-enter the street address of defendant's "dwelling" in the blank for "last known residence" in his affidavit of mailing. In this regard, it has not been suggested anywhere that the address of defendant's "last known residence" differed from that of the "dwelling" at which his wife had just been served. Finally, plaintiffs have submitted an affidavit in which they state that they are aware of the potential conflict posed by the naming of Mr. Ramos as both a plaintiff and defendant, and that the latter "agree[s] to discontinue" his loss of services cause of action.

Accordingly, that branch of defendant's motion which is to disqualify the law firm of Herbert I. Ellis, P.C. from representing the plaintiffs in this action is granted. An attorney who represents both a injured passenger and her driver as plaintiffs in a personal injury action has created a conflict of interest and violated DR 5-105(a) (see Quinn v. Walsh, 18 AD3d 638; Alcantara v. Mendez, 303 AD2d 337; Sider v. Zuhoski, 261 AD2d 529; Pessoni v. Rabkin, 220 AD2d 732; cf. Boyd v. Trent, 287 AD2d 475, lv dismissed 98 NY2d 671). Moreover, such an attorney should not continue as counsel for either one after the actual conflict has arisen because the continued representation of either would result in a violation of the ethical rule, e.g., requiring an attorney to preserve the confidences of a former client (see Sidor v. Zuhoski, 261 AD2d at 530). Thus, the discontinuance of the plaintiff-husband's derivative action is of no moment.

Dismissal under CPLR §3215 (c) is likewise granted. At bar, plaintiffs have failed to demonstrate "sufficient cause" for the failure to move for a default judgment by claiming that it emanated from a good faith attempt to negotiate an informal resolution with defendant Ramos' insurer and the apparent difficulty they experienced in locating a claims representative with the requisite authority. Moreover, it is relevant to note that a party plaintiff is not permitted to serve a party defendant, in this case her husband, by accepting substitute service and thereupon forwarding it to her husband defendant. (See CPLR §306(a); §308(2)). Accordingly, this court finds the plaintiffs lack personal jurisdiction over defendant, Ramos, and therefore dismisses the complaint pursuant to CPLR §3211(a)(8).

In light of this result, co-defendant Villacampa's cross claims against defendant Pedro L. Ramos shall be considered counterclaims against plaintiff Pedro L. Ramos. Plaintiff Pedro L. Ramos has thirty (30) days from service of this order with notice of entry to answer the counterclaims.

Accordingly, it is

ORDERED, that so much of the motion of defendant Pedro L. Ramos as is to dismiss the complaint against him is granted; and it is further

ORDERED, that the balance of the motion is granted to the extent of disqualifying the law firm of Herbert I. Ellis, P.C. from representing the plaintiffs in this action. This action is stayed thirty (30) days to permit plaintiffs to retain new counsel; and it is further [*3]

ORDERED that the Clerk enter judgment accordingly.

E N T E R,

Dated:February 7, 2008S/ Hon. Philip G. Minardo

J. S. C.

Clerk to notify both sides.