Miller v Lewis
Annotate this Case
Download PDF
Miller v Lewis 2013 NY Slip Op 33919(U) September 12, 2013 Supreme Court, Kings County Docket Number: 11358/09 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Poge 1of125 11358/2009 Decision and O<der dtd 9112113 •, . SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: PART 16 -- --- - - - - - - -- --- - - ------------- - ----------x SHIRLEY MILLER, by YEHUDA MILLER and MALKA MILLER, Guardians of the Person and Property of SHIRLEY MILLER Pursuant to the Laws of the State of Israel , Plaintiffs, Decision and order I ndex No. 11358/09 - against HENRY F. LEWIS, DUANE READE SHAREHOLDERS , LLC, DUANE READE INC., & DUANE READE GENERAL PARTNERSHIP, Defendants , September 1 2, 2013 ---- - -- --- --------- ---------- -- --- - ------ -x PRESENT: HON. LEON RUCHELSMAN The plaintiff has moved seeking to strike the defendant's answer or for some other relief based upon an a lleged ethica l violation committed by a representative of the insurance company insuring the defendants opposed the motion. arguments held . in this lawsuit. The defendants have Papers were submitted by the part ies and After reviewing all the arguments this cou rt now makes the following det e rmination. On December 19, 2008 the plaint i ff Shirley Mi l ler was hit by a truck driven b y defendant Henry Lewi s at the intersection of Ninth Avenue and West 48th Street in New York County. On April 30, 2013 the court convened a conference in efforts to sett le this lawsuit. Thus, the plaintiff herself as well as her parents and plaintiff's counsel Evan Torgan Esq. were present. Likewise, Eric Berger Esq . of Cozen O'Connor on behalf of t he defendants attended ZI :g UV hI dJS r 1 along with Richard Mastronar~o e ieBliior claims officer for ACE ;Hf:JlJ )dNno J S9N/}4 031/.i . ,, .,., Pri..ed: 6129/201 5 [* 2] P• c• 2 ol 126 11356/2009 oeclsloo ena Ofder <l!d 911Z/13 America Insurance Company, Miriam Mosseri a claims director for ACE insurance, Kathryn Criswell a structured settlement expert and Jeff Roberts an assistant vice president of Liberty Underwriters an excess carrier in the case. The settlement negotiations proceeded with the judge conferring with each side, privately upon consent, to discuss the strengths and weaknesses of the case. There is no dispute that at some point when plaintiff's counsel was speaking with the judge in the judge's chambers that Miriam Mosseri approached Yehuda and Malka Miller, the parents of Shirley Miller, and had a Hebrew. conversation with The contents of them in their native the conversation and language of its length are disputed, however, the defendants conceded that a conversation t ook place and that it was initiated by Ms. Mosseri. now been filed. The plaintiff argues that This motion has the communication violated Rule 4. 2 of the Rules of Professional Conduct since a communication was undertaken represented by counsel. between Consequently, defendants should be sanctioned. Ms . Mosseri and people the plaintiff argues the The defendants counter that no such improper or unethical communication occurred. Conclusions of Law The rule prohibiting an attorney from communicating with a person or party known to be represented by counsel has been part of the legal fabric of our jurisprudence since at least 1836. In that 2 Printed: 6/29/2015 [* 3] Page 3 of 126 1135812009 Decision and order dtd 9/12/13 year, David Hoffman of the Baltimore Bar published a book entitled A Course of Legal Study Addressed to Students and the Profession Generally wherein he included various should be a~opted he believed 'resolutions' by all practicing attorneys. Resolution XLIII states "I will never enter into any conversation with my opponen t's client, relative to his claim or defense, except with the consent and in the presence of his counsel" (id . , 2d Ed., page 771) . The first formal inclusion of these ideals took place in 19 08 when the American Bar Association adopted a Canon of Profess i onal Ethics and included Canon 9 which stated "a lawyer should not communicate upon the represented by counsel" Bar Association has subject (id). of controversy in any way wi th a part y More recently, the New York St a t e adopted Rule 4. 2 of New York's Rules of Professional Conduct which is identical to DR 7-104, save cert a in non-material changes not relevant here. as the 'no-contact rule' provides The r u le, commonly known that a "lawyer s hall n ot communicate or cause another to communica t e about t he subject o f the representation with a party the lawyer knows to be represent ed by ano t her lawyer in that matter" (id). The defendants present essentially two reasons why they argue no violation occurred. First, they maintain that Ms. Mosseri was not acting as an attorney at the time the commu n ication was made and that there f ore Ru l e 4.2 does not apply to her. Second, t h ey maintain that the communication did "not address any matters of 3 Pnnted; 6/29/2015 [* 4] PaQe 4of 126 1135812009 Decision and order dtd 9/12/13 substance, and caused no harm or prejudice" to the plaintiff (see , Affirmation in Opposition, ~4) and was thus not a commu nication concerning the "subject of the representation" prohibited by the rule. Each of these arguments will be considered in turn. The Restatement (Third) of the Law Governing Lawyers (§99(1)) reformulates Rule 4.2 and except for exceptions not applicable here is virtually identical. Comment f states that ''under the anti- contact rule of this Section, a lawyer ordinarily is not authorized to communicate with a represented nonclient even by letter with a copy to the opposite lawyer or even if the opposite lawyer wrongfully fails to convey important information to that lawyer's client" (see §20), such as a settlement offer. The rule prohibits all forms of communication, such as sending a represented nonclient a copy of a letter to the nonclient 's lawyer or causing communication through someone acting as the agent of the lawyer (see §5(2) & ~omment f thereto) duties through communication agents) . relating The to (prohibition against violation of anti-contac t the lawyer's rule applies to any representation in the matter, whoever initiates the contact and regardless of the content of the ensuing communication" (id) . A nonc lient is defined in the following section (§100(1)) as "any natural person represented by a lawyer" (id). Furthermore, comment d states that "this Section does not prohibit communications wi t h a represente d nonclient in t he course of social, bus iness, or o the r relat i onships or 4 Printed: 6129/2015 [* 5] Page 5 of 126 1135812009 Decision and order dtd 9112113 communications that do not relate to the matter i nvolyed i .n the representation. What matter or matters are involved in a representation depends on the circumstances. For example, a lawyer might know that a witness at a deposition was represented by a lawyer for an opposing party only for purposes of attending the deposition. The lawyer may contact that nonclient following the deposition when representation has endedu (id). Thus, for purposes of resolving this motion and only crediting the affidavits provided by Mr. Mastronardo and Ms. Mosseri no other conclusion can be reached but that Rule 4.2 was violated. Ms. Mosseri states in her affidavit that at some point during the settlement negotiations taking place that day she found herself alone in the courtroom with Shirley Miller's parents. states that she introduced herself and said 'hello' She then in Hebrew. Whereupon the parents asked her if she was an interpreter. She responded that she was not and that she was an employee of ACE. This is consistent with the affidavit. of M . r Mast.ron ardo which states that he informed Ms. Mosseri that "if the opportunity arose for her to speak to the Millers, she should say hello and introduce herself in Hebrew" (see, Affidavit of Richard Mastronardo, § 7). While greetings and pleasantries are always welcome and cannot alone form the basis of any violat ion, curious indeed. in this case they are Mr . Mastronardo states that Ms. Mosseri attended the settlement conference since her fluency in Hebrew, the native 5 Prirled: 6129/2015 [* 6] Pogo Gof 12G 11:>:;onooo OGd:Mon and order cld 911211;) language of the Millers, might make them feel more comfortable and thus "help Mastronardo, humanize § the Ms. 6). defendants" (Affidavit of Richard Mosseri states that she "was asked to participate in discussions with the plaintiff's parents if and when it was necessary" . (Affidavit of Miriam Mosseri, Mosseri's encounter with the Millers, 4). § Thus , Ms. initiated by her, was not merely done to act in a courteous and friendly manner, but was done with a specific and definitive goal and purpose. Ms. Mosseri states conversation only confirms this conclusion. that The ensuing following the introduction the M illers asked her numerous questions about her background and answered them all. "not wanting to be rude " s he Inevitably, the conversation turned to the case at hand and the settlement negotiations taking place as they spoke. According to Mosseri she told the Millers that ACE was present to resolve the case and that Mr. Mastronardo had trave l ed from Atlanta with "the best intentions to settle the case" and that ACE had already made settlement offers. Mi l lers that it wa s good She concluded by informing the their counsel had communicated past sett l ement of fers and she was "glad that t h ey had a good attorney and that he was taking care of them" (id. at completing the record, the extent of t he § 8). For purposes of it must be noted t hat the Millers dispute conversation as portrayed by Ms. Mosseri. According to the Millers, Ms. Mosseri specifically mentioned the amount that had been offered to settle the case, t hat a payout 6 Printed: 6/29/2015 [* 7] Pegc 7 of 1Z6 11358/2009 Decision and a<der dtd 9112113 schedule was recommended so that Shirley would be taken care of for the rest of her life and that plaintiff's counsel had rejected the previous settlement offers because he was chiefly interested in the publicity of the case. According to the Millers she further stated that if the settlement would not be reached the case would be litigated and appealed for years depriving Shirley of any award. As noted, it is not necessary to resolve the factual discrepancies since based upon Mosseri' s own record, a violation of Rule 4. 2 occurred. The contents of Millers was surely a representation" and the conversation between Mosseri communication about should have been the and the "subject of In avoided. fact, the the defendants do not really argue in their opposition papers that the communication was anything else. Rather, they argue that Mr. Mosseri was not acting as an attorney and that as a non-attorney Rule 4. 2 is inapplicable. The court will now a ddres s this argument. First, it must be emphasized that there is no evidence presented and no conclusion reached by this court that defense counsel is somehow responsible as someone with "supervisory authority ove r the nonlawyer and knows of such conduct at a time when it could be prevented or its consequences avoided or mitigated but fails to take reasonable remedial action" (see, Rule 5.3(b) (2) (i) Lawyer's Responsibility for Conduct of Nonlawyers). 7 Prirled: 6129/2015 [* 8] Paue 6Of126 11356/2009 Decision and. order dtd 9112113 Thus, any finding of impropriety on the part of ACE employees will be based upon their own independent conduct as part of a broader extension of the no contact rule . Indeed, other ancillary individuals related to a pending matter, beyond attorneys, known to be §1692 (c) (a) (2) are prohibited from contacting anyone represented by For counsel. example, 15 USC bars debt collectors from speaking directly with consumers known to be represented by counsel and are required to only contact counsel (see, Rosario v. American Counseling Services Inc., Middle District Florida, 1045585) . In addition, Association of Collective [2001] 2001 WL the New York City Bar Association the Bar of (The the City of New York Commission on Professional Judicial Ethics, Formal Opinion 04-05 [2005]) applied the ex parte prohibition even to communications initiated by a "sophisticated non-lawyer insurance adjuster" (id) . opinions likewise prohibited such contacts. Earlier ethics In fact, American Bar Association Informal Opinion 1149 [1970] mentions that insurance companies or their representatives "wi ll not deal directly with any claimant represented by an attorney without the consent of the attorney" The (id) . inescapable conclusion, then, is t ha t ACE employees violated the above mentioned rules when they continued to speak with the Millers about the fac ts of the case. enunciated that evaluates the level of There is no standard harm caused by the 8 Prfried: 6/29/2015 [* 9] Pogc 9of 12S 11356/2009 Decision and Ofdercrtd 9112113 ' ' .. communication because by its very nature the communication is harmful ( see, Miano v. AC & R Advertising Inc., 834 F.Supp 632 and 148 FRD 68 Likewise, [SDNY 1993]) . a hearing is not necessary since as noted, these conclusions are reached even crediting the version of events presented by the ACE employees. Furthermore, Ms. Mosseri stated in her affidavit that she was not at all familiar with this case and was specifically invited to attend the conference because of her fluency in Hebrew (Affidavit of Miriam Mosseri, , , 3,4 ). Therefore, the conclusions reached in this decision are not directed at Ms. Mosseri at all but ra t her at ACE America Insurance Company. Consider ing the nature of the violation and a ll the surrounding facts and circumstances the court her eby orders Ace to pay $10,000 . as follows: some of the costs of $3,000 to plaintiff's counsel fi l ing and arguing this motion to defray and the remaining $7,000 to the Lawyer's Fund for Client Protection located i n Albany, New York. The others reliefs sought are denied. So ordered. ENTER: DATED : Sep tember 12, 2013 Brooklyn N.Y. Hon. Leon Ruchelsman JSC ? I ·9 J.IV . 61 d3S EIOZ ~837J ).JNnoJ ~ n9 0:.:/71_-! .. J.!.//>I Pritted:6129/2015
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
