Mesropian v Providence Care, Inc.

[*1] Mesropian v Providence Care, Inc. 2020 NY Slip Op 50758(U) Decided on June 18, 2020 Supreme Court, Kings County Kurtz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 18, 2020
Supreme Court, Kings County

Bella Mesropian, Plaintiff,

against

Providence Care, Inc., Defendant.



502193/17



Attorney for Plaintiff

Banilov & Associates

2566 86th Street, Ste. 2

Brooklyn, NY 11214

(718) 265-0022

Attorney for Defendant

Caitlin Robin & Associates

30 Broad Street

New York, New York 10004

(646) 524-6026
Donald Scott Kurtz, J.

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed 1-12

Answering Affidavits/Affirmations 13-15

Reply Affidavits/Affirmations 16, 17-18, 19

Memoranda of Law

Other

Upon the foregoing cited papers, the Decision/Order on this motion is as follows:

Plaintiff Bella Mesropian ("plaintiff") moves for an order: (1) pursuant to CPLR 3126, striking the answer of defendant Providence Care, Inc. ("defendant") for its willful, intentional and/or negligent spoliation of evidence and for its willful failure to provide a response to the post-EBT Demand for Discovery and Inspection dated June 12, 2019 ("post-EBT D & I") as directed by the June 17 and October 4, 2019 Central Compliance Part ("CCP") Conference Orders (Colon, J.); (2) pursuant to CPLR 3126, precluding defendant from offering any testimony in its defense or any evidence at the time of trial including, but not limited to, offering [*2]any evidence or opposition to any prospective summary judgment motion; (3) pursuant to CPLR 3124, compelling defendant to provide a complete response to the post-EBT D & I; and (4) disqualifying the law firm of Caitlin Robin and Associates ("Caitlin Robin") from representing defendant herein based upon a conflict of interest and a violation of 22 NYCRR 1200 of the Rules of Professional Conduct.

Background Facts and Procedural History

Plaintiff commenced the instant action seeking compensatory damages for personal injuries she allegedly sustained on March 2, 2016 when she tripped and fell on the sidewalk abutting the premises owned by defendant and located at 835 Herkimer Street in Brooklyn, New York. Defendant operates the Brooklyn Gardens Nursing Home ("the facility") at the premises.

At his May 16, 2019 deposition, non-party witness Richard Rodrigeuz ("Rodriguez"), a former employee of defendant, testified that he witnessed plaintiff's trip and fall accident (Tr. at 21: 23-25; 79: 7). Rodriguez testified that, while on a work break, he was smoking a cigarette outside of the entrance gates to the facility when he saw plaintiff trip on a sidewalk defect and fall to the ground in front of the facility (Tr. at 19: 2-13; 21: 25; 22: 2-3; 24: 14-16). When shown photographs identified as plaintiff's Exhibits 3, 4, 6, 8 and 10 at his deposition, Rodriguez testified that said photographs depicted the defect which caused plaintiff to trip and fall on the sidewalk in front of the facility (Tr. at 28: 4-10; 33: 10; 34: 7-12; 35: 24; 39-43). Rodriguez described the defect as an "overlap lip" on the subject sidewalk (Tr. at 24: 14-16).

Rodriguez also stated that three days after the incident, his supervisor, Mr. Devito ("Devito"), and Devito's assistant, John, asked him to show them where plaintiff fell (Tr. at 25: 8-11, 14-21). Rodriguez testified that, at that time, he told Devito that plaintiff fell on the sidewalk in front of the facility and that he prepared an initial statement to that effect (Tr. at 30: 16-22; 137: 9-10). Rodriguez further testified that, at Devito's request, he wrote five to six separate statements, in total, regarding plaintiff's accident because Devito repeatedly asked him to change his description of the location of the sidewalk defect which caused plaintiff to trip and fall (Tr. at 121: 4-7; 126: 7-17; 128: 20-23). According to Rodriguez, on more than one occasion, Devito and his assistant, John, accompanied him to the front of the private houses near the facility and asked him whether plaintiff had fallen in an area on the sidewalk near the private houses rather than in front of the facility (Tr. at 132: 12-21, 24; 133: 20-25; 174: 25; 175: 2-6). Rodriguez stated that he eventually changed his statement to reflect that the location of the sidewalk defect was in front of the nearby private houses and not in front of the facility (Tr. at 137: 2-3). Rodriguez claimed that paragraph 1 of the statement that was marked as defendant's Exhibit B at his deposition (attached as Exhibit B to defendant's Affirmation in Opposition) is different from the initial statement he prepared (Tr. at 137: 18-23). Rodriguez testified that this statement was the fifth and final statement (attached as Exhibit G to the Notice of Motion) that he prepared approximately one week prior to the termination of his employment at the facility (Tr. at 137: 15-17; 182: 9-14). According to Rodriguez, the statements that he prepared noting the location of sidewalk defect as being in front of the nearby private houses were all false (Tr. at 165: 5). Rodriguez claimed that he felt "hugely intimidated" by Devito and that he also felt "coerced" by John who was "really mean" to him "when he was walking" him "out of the building" (Tr. at 165: 23-25). Rodriguez testified that Devito only "backed off" after Rodriguez wrote his last statement (Tr. at 171: 16-19, 23-25). Additionally, Rodriguez stated that he did not see either Devito or John tear up the previous statements that he had prepared (Tr. at 148: 3).

In response to defendant's counsel's question regarding whether anyone from Caitlin [*3]Robin telephoned Rodriguez prior to his deposition, Rodriguez answered in the affirmative (Tr. at 82: 10-15). Rodriguez testified that he first received a phone call from a male attorney, who did not give him his name, about five to six days prior to the date of his deposition (Tr. at 86: 5-9; 84: 2-6).

The Court notes the following exchange:

Q. What was the sum and substance of the conversation? (Tr. at 82: 16-17).A. He was telling me that he represents Providence Care and that if I feel that I am being forced, pushed or any kind of way to let him know. He would more than gladly represent me for any future references or future problems. When I — told him what happened, he kept on insinuating this is retaliation. And I told him no this is not retaliation, it's just — it's morally incorrect. That's how I expressed it (Tr. at 82: 18-25).Q. Anything else? (Tr. at 83: 5).A. And that's about it. He kept pushing that envelope of retaliation and I kept telling him —-" (Tr. at 83: 6-8). Q. Did this person on the phone tell you he was a lawyer? (Tr. at 84: 2-3).A. Yes. (Tr. at 84: 4).Q. Did he give you a name? (Tr. at 84: 5).A. No. (Tr. at 84: 6).Q. And did he actually use the word "retaliation"? (Tr. at 84: 7-8).A. Yes. He feels this is retaliation. (Tr. at 84: 9-10).Q. He used that word? (Tr. at 84: 11)A. He said that word for word. I said no. I am a man. I built myself up. I don't need pity. I recall this day because this date it was a really bad time, I learn to dust myself off and pick myself up and move on and that's exactly because I was really upset because he kept mentioning that. (Tr. at 84: 12-19). . .A. I was very upset with him expressing that retaliation part and after a while. After I said my piece when I told him I am a single mom-raised child. She raised a man not a little boy who would look into old stuff that happened in the past; that we move forward not backwards. And that's when he just kept saying oh, okay. And that was the last of our conversations. (Tr. at 84: 23-25 — 85: 2-7).Q. How long did you spend on the phone with him? (85: 8-9).A. Probably about a good six, seven minutes on the phone. It was on the Iphone. (Tr. at 85: 10-11).. . .Q. He called you more than one time? (Tr. at 86: 14-15).A. He called me more than once. (Tr. at 86: 16).Q. How many times? (Tr. at 86: 17)A. He called me twice; at most it was twice. (Tr. at 86: 18-19).Q. What did he say the second time? (Tr. at 86: 20).A. The same exact story he wanted me to repeat and he had me on hold for a minute. He said, hey, Mr. Rodriguez, can you repeat again what it was. I repeat I am man. I don't need to look at past history. I move forward. And that's when I got agitated with him, and then we ended the conversation after that. (Tr. at 86: 21—25; 87: 2-5).

Following Rodriguez's deposition, plaintiff served defendant with the post-EBT D & I [*4]seeking the following:

1. The names of all male attorneys from [Caitlin Robin] who spoke to [Rodriguez] approximately five (5) to six (6) days before his deposition which was conducted on May 16, 2019.

2. The name of the male attorney from [Caitlin Robin] who spoke to [Rodriguez] two (2) times approximately five (5) to six (6) days before his deposition which was conducted on May 16, 2019 who offered to represent [Rodriguez] in any retaliation claim brought against him by the [defendant] herein.

3. Copies of all five (5) to six (6) drafts of statements written by [Rodriguez] at the request of [Devito], identified as the administrator of the [d]efendant facility by [Rodriguez] at the deposition conducted on May 16, 2019.

4. The full name of the individual identified as [Devito], administrator of the [d]efendant facility.

5. The full name and position of the individual identified as "John the Assistant Administrator" by the nonparty witness [Rodriguez].

6. All records pertaining to any treatment and/or care rendered to the [p]laintiff at the [d]efendant's facility. An authorization to release said records in [sic] annexed hereto.

Subsequently, a CCP Conference Order dated June 17, 2019, among other things, directed defendant to respond to the post-EBT D & I by July 17, 2019 (Notice of Motion, Exhibit C). Plaintiff then served defendant with a good faith letter dated August 27, 2019 ("the good faith letter") advising that defendant had failed to comply with the June 17, 2019 CCP Conference Order and requesting compliance with same. A CCP Conference Order dated October 4, 2019, among other things, again directed defendant to respond to the post-EBT D & I and the good faith letter (Notice of Motion, Exhibit A) by November 4, 2019. However, defendant failed to provide a response as directed by the June 17 and October 4, 2019 CCP Conference Orders (Notice of Motion, Exhibit C). Thereafter, plaintiff moved for the relief requested herein.

Discussion

Discovery Issues

In support of the portion of the motion seeking to strike defendant's answer for spoliation, to preclude defendant or, in the alternative, to compel defendant, plaintiff asserts that Devito and John harassed and coerced Rodriguez to prepare five separate statements changing his original description of the location of the sidewalk defect, which caused plaintiff to trip and fall, from being in front of the facility (located at 835 Herkimer Street) to being in front of the nearby private homes (located at 843 and 845 Herkimer Street). Relying upon Rodriguez's deposition testimony, plaintiff claims that Rodriguez only changed his description of the location of the sidewalk defect because he felt intimidated by Devito and John and feared losing his job if he did not change his statement. Plaintiff asserts that, at his deposition, Rodriguez testified that the fifth and final statement that he prepared incorrectly notes the location of the sidewalk defect as being in front of the private homes located at 843 and 845 Herkimer Street. In contrast, plaintiff points out that, at his deposition, Rodriguez identified the location of the sidewalk defect as being in front of the facility as depicted in photographs of the sidewalk marked as plaintiff's Exhibits 3, 4, 6, 8 and 10.

In addition, plaintiff argues that defendant's failure to respond to the post-EBT D & I and to comply with the June 17 and October 4, 2019 CCP Conference Orders directing it to [*5]respond to same warrants the imposition of a sanction for spoliation of evidence and the striking of defendant's answer. Plaintiff contends that defendant was on notice of a potential claim against it by the mere preparation of a statement regarding the accident. Plaintiff maintains that Rodriguez's prior written statements, as testified to at his deposition, are vital and material to plaintiff's claims against defendant as they substantiate and corroborate plaintiff's allegation regarding the location of the sidewalk defect which caused her to trip and fall. Plaintiff insists that the "destruction and/or loss of these statements which go to the very heart of the issue of liability is detrimental, injurious and prejudicial to plaintiff's prosecution of this action" (Notice of Motion, Affirmation in Support, paragraph 43). Plaintiff also points to Rodriguez's deposition testimony that he did not see Devito or John destroy his prior statements. As such, plaintiff argues that Devito or John either intentionally, willfully and/or negligently destroyed Rodriguez's prior statements and, as a result, defendant's answer should be stricken.

In the alternative, plaintiff argues that if defendant's answer is not stricken, then a negative inference charge, pursuant to Pattern Jury Instruction (PJI) 1:56 and 1:77:1, against defendant regarding Rodriguez's prior statements should be imposed at the time of trial. Alternatively, plaintiff seeks to preclude defendant from submitting any evidence at trial or in opposition to a motion for summary judgment including, but not limited to, any affidavits submitted in opposition to said motion.

In opposition, defendant counters that its failure to timely respond to the post-EBT D & I was not willful or contumacious and maintains that it has since responded to the post-EBT D & I. As such, defendant argues that it has substantially complied with the CCP Conference Orders. The Court notes that defendant's response to the post-EBT D & I dated January 2, 2020 is attached as Exhibit A to the Affirmation in Opposition. Defendant responded to items 1 and 2 as "palpably improper as it is based on a mischaracterization of the testimony" of Rodriguez and is based upon Rodriguez's misunderstanding of his conversation with a male attorney at Caitlin Robin. Defendant responded to item 3 as "overly broad, unduly burdensome and not reasonably calculated to the discovery of admissible evidence." Defendant also proffers the affirmation of Jesse Dinner, Esq. ("Dinner"), attached as Exhibit B to the Affirmation in Opposition in which he explains his conversation with Rodriguez. In his affirmation, Dinner avers that he "was an attorney associated with [Caitlin Robin] in May 2019, at the time of and immediately prior to the deposition of" Rodriguez (Affirmation of Dinner, paragraph 1). Dinner avers that he spoke to Rodriguez in relation to his testimony pursuant to a subpoena issued by plaintiff and that he "offered to represent [Rodriguez] for the deposition, in his capacity as a former employee" of defendant (Affirmation of Dinner, paragraphs 2 and 3). Dinner denies plaintiff's assertion that he attempted to "pressure [Rodriguez] in any way" or that he "offered to represent [Rodriguez] in any retaliation lawsuit that may be brought against him by" defendant "or any other entities" (Affirmation of Dinner, paragraph 4). Dinner insists that "[a]ny statements that were made by [Rodriguez], during his deposition or otherwise, to that effect are false" (Affirmation of Dinner, paragraph 5). Dinner explains that he "simply offered to represent [Rodriguez] as a former employee for the purpose of his deposition, as is the custom practice for insurance carriers to represent former employees involved or appearing as a witness in a lawsuit" (Affirmation of Dinner, paragraph 6). Dinner states that Rodriguez "declined the offer to be represented for his deposition" and that they had no further communication with each other (Affirmation of Dinner, paragraph 7).

Additionally, defendant argues that it is not in possession of any prior statements [*6]prepared by Rodriguez. With respect to items 4 and 5, defendant maintains that it has already responded by providing the identity of Devito and John. In response to item 6, defendant stated that it was not in possession of any medical records related to plaintiff's care at the facility immediately after the incident and asserts that, at her deposition, plaintiff testified that she did not receive any medical treatment or care at the facility. Lastly, defendant argues that plaintiff's request for a spoliation sanction is baseless and premature.

In reply, plaintiff argues that defendant only partially responded to the post-EBT D & I and that it proffered improper objections as to items 1, 2 and 3. Plaintiff maintains that defendant has waived any objection to the discovery demands in the post-EBT D & I because defendant's counsel signed the June 17, 2019 CCP Conference Order on consent and defendant failed to move for a protective order related to same. Plaintiff reiterates her argument that defendant's answer should be stricken for spoliation based upon its willful and contumacious conduct in repeatedly failing to comply with the June 17 and October 4, 2019 CCP Conference Orders. Plaintiff points out that defendant has failed to submit a statement regarding any attempt to locate the prior statements testified to by Rodriguez, at his deposition, or an affidavit from Devito regarding same. Additionally, plaintiff asserts that defendant's counsel lacks personal knowledge of whether any search for said statements was performed and the results of said search.

In sur-reply, defendant argues that it has provided sufficient responses to the post-EBT D & I. Defendant asserts that Dinner's affirmation provides the information being sought by plaintiff regarding the identity of the male attorney who called Rodriguez prior to his deposition. With respect to plaintiff's demand in item 3 of the post-EBT D & I, defendant contests whether any prior statements prepared by Rodriguez "ever existed" (Sur Reply, paragraph 7). In support of this assertion, defendant submits, for the first time, an affidavit from Abraham Dahan ("Dahan"), defendant's current administrator. In his affidavit, Dahan avers that "[a] search has been made for all statements made by [Rodriguez] in relation to [plaintiff's] accident on March 2, 2016, by searching the records maintained in our office. As a result of the search, our office was able to locate one statement prepared by [Rodriguez] that is annexed hereto as Exhibit 'A'. Providence Care Inc., d/b/a Brooklyn Gardens Nursing Home is not in possession of any other statements prepared by [Rodriguez] regarding [plaintiff's] accident on March 2, 2016, other than the statement annexed hereto as Exhibit 'A'" (Affidavit of Dahan, paragraphs 2, 3 and 4). Defendant argues that Dahan's affidavit sets forth "its good faith efforts to comply with discovery and that [d]efendants's personnel conducted a thorough search for requested documents" (Sur Reply, paragraph 7). Defendant reiterates its argument that its failure to respond to discovery demands was not willful and contumacious and that it has since substantially complied with all discovery demands and, as such, the answer should not be stricken. Defendant reiterates its argument that plaintiff "relies wholly on the allegations of a disgruntled employee to attempt to support the drastic imposition of a spoliation sanction" (Sur Reply, paragraph 20). Defendant counters that discovery is still outstanding and that any "spoliation motions should be reserved until all discovery has been completed at the time of trial" (Sur Reply, paragraph 20).

In the Affirmation in Response to the Sur Reply, plaintiff argues that defendant improperly submitted the Sur Reply without leave of court so as to submit Dahan's affidavit in response to the arguments made in plaintiff's reply papers about the lack of an affidavit from someone with personal knowledge of any attempts to locate the prior statements testified to by [*7]Rodriguez. Plaintiff maintains that the court should reject and not consider the Sur Reply because defendant failed to annex Dahan's affidavit to its opposition papers or to submit a reasonable excuse or explain why it failed to do so. Plaintiff further maintains that Dahan's Affidavit is insufficient to constitute a Jackson affidavit (see Jackson v City of New York, 185 AD2d 768, [1st Dept 1992]) and is vague and conclusory in nature; more specifically, plaintiff contends that Dahan's Affidavit fails to state what records were searched and to state whether Devito or John were contacted.

"A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party's claim or defense such that the trier of fact could find that the evidence would support that claim or defense. Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed documents is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed documents were relevant to the party's claim or defense. The Supreme Court has broad discretion to determine a sanction for the spoliation of evidence. Striking a pleading is a drastic sanction to impose in the absence of willful or contumacious conduct and, in order to impose such a sanction, the court will consider the prejudice that resulted from the spoliation to determine whether such drastic relief is necessary as a matter of fundamental fairness. In contrast, where the moving party has not been deprived of the ability to establish his or her case or defense, a less severe sanction is appropriate. Where evidence has been found to have been negligently destroyed, adverse inference charges have been found to be appropriate" (Squillacioti v Ind. Group Home Living Program, Inc., 167 AD3d 673, 674-75 [2d Dept 2018], internal citations and quotation marks removed).

Pursuant to CPLR 3126, where a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed," the court may, inter alia, strike that party's pleadings or portions thereof (CPLR 3126[3] ). "The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court and will not be disturbed absent an improvident exercise of discretion. However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Precluding a party from presenting evidence is also a drastic remedy which generally requires a showing that the party's conduct is willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time. The nature and degree of the penalty to be imposed pursuant to CPLR 3126 rests within the discretion of the motion court" (Cioffi v S.M. Foods, Inc., 142 AD3d 520, 523-24 [2d Dept 2016], internal citations and quotation marks removed).

As an initial matter, the Court notes that Dahan's Affidavit was submitted for the first time with defendant's Sur Reply. It is unclear, from a review of the record presently before the Court, whether defendant submitted the Sur Reply with leave of the Court. In any event, the Court will consider the Sur Reply and Dahan's Affidavit as plaintiff submitted an affirmation in response thereto and, as such, is not prejudiced by consideration of same (Sanders v 210 N. 12th [*8]St., LLC, 171 AD3d 966, 968-69 [2d Dept 2019]). Nevertheless, for the reasons stated below, the Court finds that the Dahan Affidavit is insufficient.

Based upon a review of the record submitted by the parties and the relevant law, the Court declines to strike defendant's answer at this juncture. The Court notes, however, that defendant has failed to submit any excuse or explanation for its delay in responding to the post-EBT D & I despite being directed to do so by the June 17 and October 4, 2019 CCP Conference Orders. Indeed, although not referred to by the parties, a review of the court's record indicates that by Final Pre-Note Order (Colon, J.) dated February 13, 2020, defendant, among other things, was again directed to respond to the post-EBT D & I and the good faith letter by March 13, 2020. With respect to items 1, 2 and 3 of the post-EBT D & I, the Court finds that, while defendant's response, among other things, deems said requests to be "palpably improper" and "unduly burdensome", defendant has proffered the Dinner affirmation in which he states that he was the Caitlin Robin associate who had a telephone conversation with Rodriguez prior to his deposition and explains the content of said conversation.

With respect to item 4, the Court finds that defendant's response and its submission of the Dahan affidavit, for the first time with the Sur Reply papers, are insufficient. More specifically, defendant's counsel lacked personal knowledge of the existence of the prior statements allegedly prepared by Rodriguez and, as such, the response regarding same was insufficient. Additionally, in his affidavit, Dahan failed to state what documents at the facility were searched, whether any attempts were made to contact Devito or John and obtain a statement from them regarding the existence of Rodriguez's alleged prior statements and if said prior statements did exist, what efforts were made to preserve them (see generally, Jackson, 185 AD2d 768).

In this regard, the portion of plaintiff's motion seeking to strike defendant's answer for willful, intentional and/or negligent spoliation of evidence and for its willful failure to provide a response to the post-EBT D & I, to preclude defendant and/or compel defendant to provide a complete response to the post-EBT D & I is granted to the extent that: (1) within 30 days of service of a copy of this decision and order with notice of entry, defendant is directed to provide plaintiff with either the prior statements allegedly prepared by Rodriguez or a Jackson affidavit (see Jackson, 185 AD2d 768) by someone with personal knowledge stating what documents at the facility were searched, whether any attempts were made to contact Devito or John and obtain a statement from them regarding the existence of Rodriguez's alleged prior statements and if said prior statements did exist, what efforts were made to preserve them; (2) defendant is precluded from relying on at trial or in opposition to any motion for summary judgment any evidence related to the location of the subject sidewalk defect which caused plaintiff to trip and fall if either the prior statements or a Jackson affidavit regarding same is not produced within the time-frame set forth herein ; (3) plaintiff is entitled to a negative inference against defendant at the time of trial in relation to Rodriguez's previously prepared statements if either the prior statements or a Jackson affidavit regarding same is not produced within the time-frame set forth herein; and (4) any other relief requested herein by plaintiff related to discovery issues is denied.

Disqualification of Defendant's Counsel

The Court now turns to that portion of plaintiff's motion seeking disqualification of Caitlin Robin. Plaintiff maintains that the Caitlin Robin attorney who contacted Rodriguez, prior to his deposition, offered to represent Rodriguez if he was being forced, intimidated or coerced by defendant (Notice of Motion, Affirmation in Support, paragraphs 31, 60). Plaintiff is of the opinion that the Caitlin Robin attorney was attempting to coerce Rodriguez to testify in a manner [*9]favorable to defendant "while at the same time attempting to curry favor" (Notice of Motion, Affirmation in Support, paragraph 61) with Rodriguez. Plaintiff contends that the attorney from Caitlin Robin's offer to represent Rodriguez in a potential lawsuit against defendant for their retaliatory termination of his employment constituted an inherent conflict of interest in violation of 12 NYCRR 1200 (Rule 1.7) and, as such, Caitlin Robin should be disqualified from representing defendant. Plaintiff also argues that Rodriguez became a prospective client of Caitlin Robin by virtue of Rodriguez's conversation with the Caitlin Robin attorney. Plaintiff further argues that the offer to represent Rodriguez in a lawsuit against defendant for their retaliatory discharge of him "as a result of offering testimony that is adverse to their defense or for any issues that might arise due to his impending deposition testimony is in direct conflict with" Caitlin Robin's representation of defendant in the instant action (Notice of Motion, Affirmation in Support, 65). Additionally, plaintiff asserts that the Caitlin Robin attorney who spoke with Rodriguez may become a witness for the purposes of a deposition and trial pursuant to the advocate-witness rule (22 NYCRR 1200). Lastly, plaintiff contends that defendant will not be prejudiced if Caitlin Robin is disqualified.

In opposition, defendant's counsel counters that it was not unusual for an attorney from Caitlin Robin to contact Rodriguez, a non-party, prior to his deposition as it is "common practice for former employees to be represented at a deposition by the attorneys hired by their former employer" (Affirmation in Opposition, paragraph 15). Defendant asserts that Rodriguez misunderstood the conversation with Dinner and insists that he merely made an offer for Caitlin Robin to represent Rodriguez at the non-party witness deposition and not in a potential future retaliation lawsuit. In support of this assertion, defendant proffers the Dinner affirmation, the contents of which are described above in the discussion of the discovery issues.

In reply, plaintiff argues that Dinner fails to acknowledge that his offer to represent Rodriguez constituted a conflict of interest. Plaintiff asserts that Dinner failed to indicate, among other things, how many conversations he had with Rodriguez and how the conversations were initiated in the first instance. Plaintiff questions why Dinner did not conduct Rodriguez's deposition on behalf of defendant. Finally, plaintiff reiterates her argument that Caitlin Robin should be disqualified.

In sur reply, defendant argues that, in his affidavit, Dinner was merely explaining the content of his conversation between himself and Rodriguez. Defendant counters that Dinner's affirmation addresses all of the questions raised by plaintiff and that there was no requirement for Dinner to be the attorney from Caitlin Robin to conduct the deposition of Rodriguez. Defendant maintains that even if Rodriguez had been represented by Caitlin Robin for the purposes of the deposition, its attorney would still be permitted to question Rodriguez. Defendant contends that Rodriguez misunderstood the purpose of the conversation with Dinner and that "there is no evidence any intention that there is or will be any retaliation against [Rodriguez] for his testimony in this matter" (Sur Reply, paragraph 17).

" '[T]he disqualification of an attorney is a matter which rests within the sound discretion of the court. A party'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 absent a clear showing that disqualification is warranted, and the movant bears the burden on the motion' " (Levy v 42 Dune Rd., LLC, 162 AD3d 651, 652-53 [2d Dept 2018], quoting Matter of Aaron W. v. Shannon W., 96 AD3d 960, 962 [2d Dept 2012], quoting Campolongo v. Campolongo, 2 AD3d 476, 476 [2d Dept 2003]).

"Rule 1.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in pertinent part, with respect to conflicts of interests involving current clients, that a lawyer shall not represent a client if a reasonable lawyer would conclude that "the representation will involve the lawyer in representing differing interests" (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7[a][1] ). Pursuant to rule 1.7(b) of the Rules of Professional Conduct (22 NYCRR 1200.0) the potential conflict may be waived if the lawyer reasonably believes that he or she will be able to provide competent and diligent representation to each affected client, the representation is not prohibited by law, the representation does not involve the assertion of a claim by one client against the other in the same litigation, and each affected client gives informed consent, confirmed in writing" (Shelby v Blakes, 129 AD3d 823, 825 [2d Dept 2015]).

Rule 1.18(c) of the Rules of Professional Conduct prohibits a lawyer from representing "[a] client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter ..."

Rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides that, unless certain exceptions apply, "[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact" (see Falk v. Gallo, 73 AD3d 685, 901 N.Y.S.2d 99). A party moving for disqualification must demonstrate that (1) the testimony of the opposing party's counsel is necessary to his or her case, and (2) such testimony would be prejudicial to the opposing party (Levy v 42 Dune Rd., LLC, 162 AD3d 651, 652-53 [2d Dept 2018]; see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 NY2d 437, 446, 515 N.Y.S.2d 735, 508 N.E.2d 647; Trimarco v. Data Treasury Corp., 91 AD3d 756, 757, 936 N.Y.S.2d 574; Daniel Gale Assoc., Inc. v. George, 8 AD3d 608, 609, 779 N.Y.S.2d 573).

Notwithstanding plaintiff's arguments to the contrary, based upon a review of the record submitted by the parties and the relevant case law, the Court finds that Dinner's affirmation does not demonstrate any conduct on the part of Caitlin Robin that warrants its disqualification from representation of defendant. Upon a close review of Rodriguez's deposition testimony transcript and Dinner's affirmation, the Court notes that Rodriguez did not specifically state that the Caitlin Robin attorney offered to represent him in a future lawsuit with a retaliation claim against defendant (Rodriguez Tr. 82: 22-23). Additionally, when Rodriguez testified that the Caitlin Robin attorney told him to let him know if he felt that he was "being forced, pushed or any kind of way" (Rodriguez Tr. 82: 19-21), he did not specify by whom he was being forced or pushed. Notably, Rodriguez testified that, after he "told" the male attorney from Caitlin Robin "what happened", the attorney "kept on insinuating this is retaliation" (Tr. at 81: 24-25). In response, Rodriguez testified that he denied that it was "retaliation" and, instead, stated that "it's morally incorrect" (Tr. at 82: 18-25). Indeed, Rodriguez declined representation by Caitlin Robin at the non-party deposition. The Court rejects plaintiff's argument that Dinner is now a prospective witness in a potential retaliation lawsuit by Rodriguez against defendant. In light of the foregoing, plaintiff's motion to disqualify Caitlin Robin from representing defendant is denied.

Conclusion

Accordingly, it is

ORDERED that the portion of plaintiff's motion seeking to strike defendant's answer for willful, intentional and/or negligent spoliation of evidence and for its willful failure to provide a response to the post-EBT D & I, to preclude defendant and/or compel defendant to provide a complete response to the post-EBT D & I is granted to the extent that: (1) within 30 days of [*10]service of a copy of this decision and order with notice of entry, defendant is directed to provide plaintiff with either the prior statements allegedly prepared by Rodriguez or a Jackson affidavit (see Jackson, 185 AD2d 768) by someone with personal knowledge stating what documents at the facility were searched, whether any attempts were made to contact Devito or John and obtain a statement from them regarding the existence of Rodriguez's alleged prior statements and if said prior statements did exist, what efforts were made to preserve them; (2) defendant is precluded from relying on at trial or in opposition to any motion for summary judgment any evidence related to the location of the subject sidewalk defect which caused plaintiff to trip and fall if either the statements or a Jackson affidavit regarding same is not produced within the time-frame set forth herein ; (3) plaintiff is entitled to a negative inference against defendant at the time of trial in relation to Rodriguez's previously prepared statements if either the statements or a Jackson affidavit regarding same is not produced within the time-frame set forth herein; and (4) any other relief requested herein by plaintiff related to discovery issues is denied; and it is further

ORDERED that the portion of plaintiff's motion seeking disqualification of Caitlin Robin is denied.

The foregoing shall constitute the Decision and Order of the Court.

Dated: June 18, 2020

DONALD SCOTT KURTZ

Justice, Supreme Court