Findley v Floyd

[*1] Findley v Floyd 2008 NY Slip Op 51342(U) [20 Misc 3d 1113(A)] [20 Misc 3d 1113(A)] Decided on February 21, 2008 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 21, 2008
Supreme Court, Bronx County

Michael A. Findley and Jonelle I. Orridge, Plaintiffs

against

Debbie Floyd, Clarence Floyd, Clarence Simmons, and Dante D. Colbert, Defendants



16271/2003



APPEARANCES:

For Plaintiffs

Stephen M. Cohen Esq.

Cohen & Jaffe, LLP

2001 Marcus Avenue, Lake Success, NY 11042

For Defendants Debbie Floyd and Clarence Floyd

Alan P. Siquijor Esq.

Law Office of Irwen C. Abrams

26 Court Street, Brooklyn, NY 11242

Lucy Billings, J.

I.BACKGROUND

Plaintiffs sue to recover for personal injuries sustained February 1, 2003, when a vehicle owned by defendant Colbert and operated by defendant Simmons collided with a vehicle owned by defendant Clarence Floyd and operated by defendant Debbie Floyd, in which plaintiffs were passengers. The Floyd defendants move for summary judgment dismissing the complaint and cross-claims against them, on the grounds that the Floyds were not negligent in causing the collision and did not contribute to plaintiffs' injuries in any way. C.P.L.R. § 3212(b). The Floyds' attorney alternatively moves to withdraw. C.P.L.R. § 321(b)(2). Upon oral argument and after unsuccessful attempts to settle the action, the court denies both motions.

II.THE ATTORNEY'S MOTION TO WITHDRAW

The Law Office of Irwen C. Abrams, the Floyds' attorney, seeks to withdraw because it is counsel to MetLife Auto & Home, the Floyds' insurer, and in an order dated November 3, 2005, the court (McKeon, J.) granted MetLife Auto & Home's motion for a default judgment on default, in an action for a declaratory judgment that the insurer owed no duty to defend or indemnify the Floyds. Although the attorney presents no documentary or other corroborating evidence that the attorney is in fact counsel to MetLife Auto & Home, the attorney's relationship to the Floyds, not to MetLife, is dispositive. Dillon v. Otis El. Co., 22 AD3d 1, 3-4 (1st Dep't 2005). Once the attorney was assigned to defend the Floyds, the attorney-client relationship is only with the insureds. Federal Ins. Co. v. North American Specialty Ins. Co., 47 AD3d 52, 59 (1st Dep't 2007); Woodson v. American Tr. Ins. Co., 280 AD2d 328 (1st Dep't 2001). The law office owes its entire allegiance only to the insureds and no allegiance to the insurer. Federal Ins. [*2]Co. v. North American Specialty Ins. Co., 47 AD3d at 59. Thus "the paramount interest" the attorney represents, to the exclusion of the insurer's interests, is the insureds' interest. Feliberty v. Damon, 72 NY2d 112, 120 (1988); Federal Ins. Co. v. North American Specialty Ins. Co., 47 AD3d at 59. The Floyds' attorney presents no evidence of the terms of a retainer agreement with the Floyds that would condition their attorney-client relationship on the insurer's duties, nor points to any act or omission by the Floyds in breach of their relationship that would constitute a ground for terminating representation. 22 N.Y.C.R.R. § 1200.15(c).

The attorney claims an inability to locate the Floyds to obtain an affidavit of their account of the collision, because two telephone numbers for the Floyds provided by Joseph Katz, Debbie Floyd's attorney in a related action, were disconnected. Clients' refusal to communicate with their attorney may constitute conduct that "renders it unreasonably difficult for the lawyer to carry out employment effectively," 22 N.Y.C.R.R. § 1200.15(c)(1)(iv), which would furnish a ground for terminating representation. Dillon v. Otis El. Co., 22 AD3d at 4-5; Bok v. Werner, 9 AD3d 318 (1st Dep't 2004). The limited attempt to telephone two disconnected numbers provided by another attorney, however, hardly qualifies as diligent efforts to contact the Floyds by their attorney in this action. Nor does the attorney here indicate that Mr. Katz has encountered any difficulty in contacting Ms. Floyd via other means or in representing her.

While the Floyds' attorney here seeks to establish further diligence in contacting the Floyds through the affidavit of investigator Peter J. McLoughlin, the attorney presents that affidavit for the first time in reply, which the court ordinarily may not consider. McNair v. Lee, 24 AD3d 159, 160 (1st Dep't 2005); Morris v. Solow Mgt. Corp., 8 AD3d 126, 127 (1st Dep't 2004); Jackson v. Bronx Lebanon Hosp. Ctr., 7 AD3d 356, 357 (1st Dep't 2004); Leeds v. Lenox Hill Hosp., 6 AD3d 232 (1st Dep't 2004). Were the court to consider the affidavit, McLoughlin fails in any event to specify the steps he took to locate the Floyds, to support his conclusion that they do not reside at the address investigated. See Matter of Freeman, 4 AD3d 1, 3 (1st Dep't 2004); Preferred Mut. Ins. Co. v. SAV Carpentry, Inc., 44 AD3d 921, 922 (2d Dep't 2007).

III.THE FLOYDS' MOTION FOR SUMMARY JUDGMENT

In seeking summary judgment, the Floyd defendants rely on an inadmissible transcript of a telephone interview of Debbie Floyd by Sharon Zimmer, an employee of MetLife Auto & Home. Ms. Floyd's transcribed statements are not sworn by either Ms. Floyd or Ms. Zimmer, nor does anyone authenticate that the transcript is of Ms. Floyd's statements or attest that her oral statements are reproduced accurately in writing. People v. Rodriguez, 205 AD2d 328 (1st Dep't 1994); Dan's Supreme Supermarkets v. Redmont Realty Co., 261 AD2d 353, 354 (2d Dep't 1999). Again only in a reply that the court ordinarily may not consider, does a witness "certify," again without being sworn, that the transcript is an accurate reproduction of the oral words, but not that they are in Ms. Floyd's voice. Reply Aff. of Alan P. Siquijor, Ex. B at 9. See McNair v. Lee, 24 AD3d at 160; Morris v. Solow Mgt. Corp., 8 AD3d at 127; Jackson v. Bronx Lebanon Hosp. Ctr., 7 AD3d at 357; Leeds v. Lenox Hill Hosp., 6 AD3d 232. Finally in reply, the Floyd defendants rely on Debbie Floyd's "Report of a Motor Vehicle Accident," Siquijor Reply Aff., Ex. C, likewise unsworn, and unaccompanied by any certification or foundation that the report is a public record or anyone's business record. C.P.L.R. §§ 3122-a(a) and (b), 4518(a) and (c), 4520, 4540(a) and (b); People v. Mertz, 68 NY2d 136, 147-48 (1986); Zuluaga v. P.P.C. Constr., LLC, 45 A.D3d 479, 480 (1st Dep't 2007); Perez v. Brux Cab Corp., 251 AD2d 157, 159 (1st Dep't 1999); Kane v. Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 (2d Dep't 2004). See Vento v. City of New York, 25 AD3d 329, 330 (1st Dep't 2006); Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 (1st Dep't 2003); People v. Lewis, 284 AD2d 172, 173 (1st Dep't 2001); People v. James, 4 AD3d 774, 775 (4th Dep't 2004).

While the court may consider inadmissible evidence in opposition to summary judgment, if the opponent provides an acceptable excuse for the inadmissible form, Chianese v. Meier, 246 AD2d 328, 329 (1st Dep't 1998); Balsam v. Delma Eng'g Corp., 203 AD2d 203 (1st Dep't 1994), here even the proponents of summary judgment, their attorney having failed to demonstrate more than a perfunctory effort to locate them, provide no such explanation. Schwaller v. Squire [*3]Sanders & Dempsey, 249 AD2d 195, 197 (1st Dep't 1998); Dan's Supreme Supermarkets v. Redmont Realty Co., 261 AD2d at 354. In sum, even were the court to treat all this reply evidence as original support for the motion, the evidence is unacceptable in its inadmissible form.

IV.CONCLUSION

For the above reasons, the court denies the motion by defendants Debbie and Clarence Floyd for summary judgment. C.P.L.R. § 3212(b). The court also denies the motion by the Law Office of Irwen G. Abrams to withdraw as the Floyd defendants' attorney, without prejudice to a future motion for the same relief upon an adequate showing of grounds for that relief, whether the ground claimed in this motion supported by a detailed factual showing, or another demonstrated ground. C.P.L.R. § 321(b)(2); 22 N.Y.C.R.R. § 1200.15(c). This decision constitutes the court's order.

DATED: February 21, 2008

_____________________________

LUCY BILLINGS, J.S.C.