Opinion
510599/16
06-30-2017
Yves–Nick PASQUIS and Jiatian Feng, Plaintiffs, v. Luis Esteban Martinez OSORIO, Misael Aguilar, Defendants.
Plaintiffs, GRATT & ASSOCIATES P.C., Address: 2021 NOSTRAND AVE STE 2, BROOKLYN, NY 11210, Phone: (718) 963–3339 Defendants, RICHARD T. LAU & ASSOCIATES, Address: P.O. Box 9040, Jericho, NY 11753, Phone: 516–229–6000
Plaintiffs, GRATT & ASSOCIATES P.C., Address: 2021 NOSTRAND AVE STE 2, BROOKLYN, NY 11210, Phone: (718) 963–3339
Defendants, RICHARD T. LAU & ASSOCIATES, Address: P.O. Box 9040, Jericho, NY 11753, Phone: 516–229–6000
Paul Wooten, J.
Notice of Motion/ Order to Show Cause—Affidavits—Exhibits...
Answering Affidavits—Exhibits (Memo)
Replying Affidavits (Reply Memo)
Motion sequence numbers 1 and 2 are consolidated for disposition.
This action arises out of a two car motor vehicle accident that occurred on December 7, 2013 on the FDR Drive near East 96th Street, in New York County, New York. Yves–Nick Pasquis (Pasquis) alleges that on the date of the accident, he and his passenger, Jiatian Feng (Feng) (collectively, plaintiffs) were driving on the FDR Drive. According to Pasquis, he slowed his vehicle down gradually and brought said vehicle to a complete stop, when his vehicle was suddenly rear-ended by a vehicle owned by Misael Aguilar (Aguilar) and operated by Luis Esteban Martinez Osorio (Osorio). Plaintiffs commenced this action via Summons and Verified Complaint on June 22, 2016 alleging personal injuries from the accident.
Before the Court is a motion by the plaintiffs for an Order pursuant to CPLR 3212 granting summary judgment on the issue of liability in their favor (motions sequence 1). Defendants are in opposition to the herein motion. Plaintiffs submit a reply. Also before the Court is defendants' cross-motion for an Order disqualifying plaintiffs' counsel from representing either plaintiff due to a conflict of interest (motion sequence 2). Plaintiffs submit opposition to the cross-motion.
In support of their motion for summary judgment on the issue of liability [MS 1], plaintiffs submit, inter alia , a copy of the Summons and Verified Complaint and Pasquis' sworn affidavit dated November 1, 2016. In opposition, defendants submit a copy of Pasquis' sworn affidavit and a sworn affidavit from Osorio dated November 30, 2016.
In support of their motion for disqualification of counsel [MS 2], defendants attach a copy of the Summons and Verified Answer and rely on Ferrara v. Jordache , 12 Misc 3d 769 [Sup Ct Kings County, 2006] to support their position that plaintiffs' counsel cannot simultaneously represent a driver and a passenger in an automobile accident. In opposition, plaintiffs submit an attorney affirmation.
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ; Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ; Winegrad v. NY Univ. Medical Cntr. , 64 NY2d 851, 853 [1985] ). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez , 68 NY2d at 324 ; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc. , 10 NY3d 733, 735 [2008] ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc. , 51 AD3d 651, 652 [2d Dept 2008] ; Greenberg v. Manlon Realty , 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v. Citibank Corp. , 100 NY2d 72, 81 [2003] ; Zuckerman v. City of NY , 49 NY2d 557, 562 [1980] ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century–Fox Film Corp. , 3 NY2d 395, 404 [1957] ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc. , 65 NY2d 625, 626 [1985] ; Boyd v. Rome Realty Leasing Ltd. Partnership , 21 AD3d 920, 921 [2d Dept 2005] ; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; CPLR 3212[b] ).
DISCUSSION
A. Motion Sequence 1
"To prevail on a motion for summary judgment on the issue of liability, a plaintiff is required to submit evidence in admissible form establishing, prima facie, that the defendant was negligent and that the plaintiff was free from comparative fault" ( Derieux v. Apollo NY City Ambulette, Inc. , 131 AD3d 504, 504–505 [2d Dept 2015] ; Zhu v. Natale , 131 AD3d 607, 608 [2d Dept 2015] ), as there can be more than one proximate cause of an accident (see id.). "Where a plaintiff has established his or her prima facie entitlement to judgment as a matter of law, the opposing party may defeat the motion by submitting sufficient evidence to raise a triable issue of fact as to the plaintiff's comparative fault" (id. ; see Lu Yuan Yang v. Howsal Cab Corp. , 106 AD3d 1055 [2d Dept 2012] ).
"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" ( Williams v. Spencer–Hall , 113 AD3d 759, 759–760 [2d Dept 2014] ; see Taing v. Drewery , 100 AD3d 740 [2d Dept 2012] ; see also Vehicle and Traffic Law § 1129[a] ). "In addition, Vehicle and Traffic Law § 1129 (a) requires a driver to maintain a safe distance between vehicles: ‘The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway’ " ( Filippazzo v. Santiago , 277 AD2d 419, 419–420 [2d Dept 2000] ). "Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" ( Williams , 113 AD3d at 760 ; see Maragos v. Sakurai , 92 AD3d 922, 923 [2d Dept 2012] ; Balducci v. Velasquez , 92 AD3d 626, 628 [2d Dept 2012] ).
The Court notes that Feng does not submit any evidence in support of her claim for summary judgment on the issue of liability. Therefore, the portion of plaintiffs' motion for summary judgment on liability is denied as it relates to Feng.
As to Pasquis, the Court finds that he met his initial burden demonstrating his entitlement as a matter of law via the submission of his sworn affidavit. In his affidavit, Pasquis avers that he was driving his vehicle in the right lane of the FDR Drive (see plaintiffs' exhibit B, Pasquis Aff. ¶ 4). Pasquis stated that "traffic was heavy to the accident ahead", he slowed his vehicle down gradually and brought it to a complete stop. Pasquis further stated that he was stopped for about one minute when his vehicle was suddenly rear-ended by defendants' vehicle (id. at ¶¶ 5–6). "A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" ( Cajas–Romero v. Ward , 106 AD3d 850, 851 [2d Dept 2013] ; see Xian Hong Pan v. Buglione , 101 AD3d 706 [2d Dept 2012] ; Volpe v. Limoncelli , 74 AD3d 795, 795 [2d Dept 2010] ; see also Gambino v. City of New York , 205 AD2d 583 [2d Dept 1994] ).
However, in opposition, defendants raise triable issues of fact as to whether there's a non-negligent explanation for the collision. In his affidavit, Osorio avers that on the day of the accident, the weather was cloudy and the roads were wet (see defendants' exhibit 2, Osorio aff.). Osorio also avers that prior to the collision, he was traveling at a safe distance behind plaintiffs' vehicle when the operator of plaintiffs' vehicle slammed on his brakes and stopped short (id. ). Osorio further stated that "there had apparently been another vehicle with no lights on stopped in the right lane ahead of the 2001 Nissan [plaintiffs' vehicle]" (id. ). Osorio avers that in response to plaintiffs' vehicle stopping short, he immediately applied his brakes and turned his vehicle to the left in an attempt to avoid colliding with plaintiffs' vehicle but was unable to do so (id. ). Given Osorio's explanation that the plaintiffs' vehicle may have stopped short to avoid colliding with the disabled vehicle ahead of them, coupled with Osorio's contention that he did not have sufficient time to break and although he took evasive maneuver, he could not avoid the accident, the Court finds that Pasquis motion for summary judgment on liability must be denied whereas here, "a non-negligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle..." ( Tumminello v. City of New York , 148 Ad3d 1084, 1085 [2d Dept 2017] ; Theo v. Vasquez , 133 AD3d 795 [2d Dept 2016] ). Additionally, Osorio sets forth a differing version of events from Pasquis' description as to how the accident occurred, specifically as to how long Pasquis was stopped prior to the collision from the rear.
The conflicting versions as to how the accident occurred support different conclusions regarding the fault of the parties. The existence of triable issues of fact herein requires denial of this motion by plaintiffs for summary judgment on liability (see Goulet v. Anastasio , 148 AD3d 783 [2d Dept 2017] ; Fauvell v. Samson , 61 AD3d 714 [2d Dept 2009] ; Vehicle and Traffic Law § 1111 ; cf. Monteleone v. Jung Pyo Hong , 79 AD3d 988 [2d Dept 2010] ).
B. Motion Sequence 2
"The disqualification of an attorney is a matter that rests within the sound discretion of the court" ( Halberstam v. Halberstam , 122 AD3d 679, 680 [2d Dept 2014] ; see Ike & Sam's Group, LLC v. Brach , 138 AD3d 690 [2d Dept 2016] ; Matter of Madris v. Oliviera , 97 AD3d 823 [2d Dept 2012] ). "A party's entitlement to be represented by counsel of his or her choice is a valued right which should not be abridged absent a clear showing that disqualification is warranted" ( Scialdone v. Stepping Stones Assoc., L.P. , 148 AD3d 950, 952 [2d Dept 2017], quoting Homar v. American Home Mtge. Acceptance, Inc. , 119 AD3d 901, 901 [2d Dept 2014] ). "Disqualification of legal counsel during litigation implicates not only the ethics of the profession but also the parties' substantive rights, thus requiring any restrictions to be carefully scrutinized. The party seeking to disqualify a law firm or an attorney bears the burden to show sufficient proof to warrant such a determination’ " ( Kelleher v. Adams , 148 AD3d 692, 692–693 [2d Dept 2017], quoting Hele Asset, LLC v. S.E.E. Realty Assoc. , 106 AD3d 692, 693 [2d Dept 2013], quoting Gulino v. Gulino , 35 AD3d 812, 812 [2d Dept 2006] ). "Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney" ( Nenninger v. Kelly , 140 AD3d 961, 963 [2d Dept 2016] ).
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. Moreover, "the dual representation by one firm of a driver and passenger in an automobile involved in a collision constitutes a conflict of interest in violation of the disciplinary rules" ( Quin v. Walsh , 18 AD3d 638, 638 [2d Dept 2005] ; Shelby v. Blakes , 129 AD3d 823, 825 [2d Dept 2015] ; Pessoni v. Rabkin , 220 AD2d 732, 732 [2d Dept 1995] ).
Here, the Court finds that plaintiffs' counsel representation of Pasquis and Feng creates an obvious conflict which warrants that plaintiffs counsel be disqualified from representing either plaintiff. Firstly, the Court notes that the Feng's right as a potential "innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident" ( Phillip v. D & D Carting Co., Inc. , 136 AD3d 18, 24–25 [2d Dept 2015] ). Notwithstanding same, plaintiffs' counsel submits no evidence in admissible form to support Feng's application for summary judgment or even argue that Feng, as a potential innocent passenger, is entitled to summary judgment. Secondly, the Court finds unpersuasive plaintiffs' counsel argument that they should not be disqualified as Pasquis did not contribute to the subject accident. Such a conclusory assertion is insufficient, unavailing, and is belied by the Court's denial the portion of plaintiffs' motion which seeks summary judgment on behalf of Pasquis. Additionally and importantly, in the instant case, there was no written confirmation of informed consent of plaintiffs to the potential conflict of interest of the dual representation ( Shelby , 129 AD3d at 825 ). Thus, despite the valued right of a party's entitlement to be represented by counsel of his or her choice, given all the above, the Court finds disqualification of plaintiffs' counsel from representation of either party warranted under the circumstances presented herein.
CONCLUSION
Accordingly it is hereby,
ORDERED that the motion by plaintiff for summary judgment on the issue of liability is denied in its entirety (motion sequence 1); and it is further,
ORDERED that defendants' cross-motion to disqualify plaintiffs' counsel from representing either of the plaintiffs in this herein action is granted (motion sequence 2); and it is further,
ORDERED that plaintiffs' counsel is directed to serve upon the plaintiffs, YVES–NICK PASQUIS and JIATIAN FENG, in addition to a copy of this Order with Notice of Entry, a notice directing the plaintiffs to proceed pro se or to appoint a substitute attorney within 30 days from receipt of the notice; proof of service to be filed with the County Clerk, and a copy of said proof to be submitted to the Clerk of this Part, Room 775, 360 Adams Street; and it is further,
ORDERED that no further proceedings may be taken against plaintiffs, YVES–NICK PASQUIS and JIATIAN FENG, without leave of this Court for sixty (60) days from the date of this Order; and it is further,
ORDERED that counsel for defendants is directed to serve a copy of this Order with Notice of Entry upon the plaintiffs and the County Clerk, who is directed to update the Court records accordingly.
This constitutes the Decision and Order of the Court.