Opinion
124 Index No. 159457/18 Case No. 2022–04881N
04-27-2023
Erin DOMINGO, Plaintiff–Appellant, v. 541 OPERATING CORP., et al., Defendants–Respondents.
Law Office of Dimitrios Kourouklis, PH.D., New York (Dimitrios Kourouklis of counsel), for appellant. Nicoletti Spinner Ryan Gulino Pinter LLP, New York (Matthew G. Corcoran of counsel), for 541 Operating Corp., respondent. Kaufman Borgeest & Ryan LLP, Valhalla (Lisa E. Fleischmann of counsel), for Bidesh "Teddy" Persaud and Solutions America, LLC, respondent.
Law Office of Dimitrios Kourouklis, PH.D., New York (Dimitrios Kourouklis of counsel), for appellant.
Nicoletti Spinner Ryan Gulino Pinter LLP, New York (Matthew G. Corcoran of counsel), for 541 Operating Corp., respondent.
Kaufman Borgeest & Ryan LLP, Valhalla (Lisa E. Fleischmann of counsel), for Bidesh "Teddy" Persaud and Solutions America, LLC, respondent.
Renwick, A.P.J., Gonza´lez, Kennedy, Higgitt, JJ.
Order, Supreme Court, New York County (Lyle E. Frank, J.), entered on or about September 29, 2022, which granted defendants’ motion to disqualify plaintiff's attorney Effimia Soter, Esq. and the Law Offices of Effie Soter, PC, as counsel, unanimously reversed, on the law, without costs, and the motion denied.
Defendants failed to establish that plaintiff's counsel's testimony was necessary and would not be cumulative so as to require disqualification of plaintiff's counsel and her firm (see S & S Hotel Ventures Ltd. Partnership v. 777 S.H. Corp., 69 N.Y.2d 437, 445–446, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987] ). Although the motion court determined that plaintiff's counsel's attendance and alleged interference at plaintiff's independent medical examination (IME) warranted disqualification because she could not act as both witness and advocate, disqualification is required "only where the testimony by the attorney is considered necessary and prejudicial to plaintiffs’ interests" ( Ullmann–Schneider v. Lacher & Lovell–Taylor PC, 110 A.D.3d 469, 470, 973 N.Y.S.2d 57 [1st Dept. 2013] ).
Plaintiff was entitled to have her counsel present at the IME, provided counsel did not prevent defendants’ doctor from conducting "a meaningful examination," in part to deter the examining doctor "from inquiring about matters beyond the scope of the particular action" ( Markel v. Pure Power Boot Camp, Inc., 171 A.D.3d 28, 29–30, 96 N.Y.S.3d 187 [1st Dept. 2019] [internal quotation marks omitted]). Although defendants maintain that they have a right to call plaintiff's counsel as a witness based on the knowledge she obtained at the IME, and therefore her disqualification under Rules of Professional Conduct ( 22 NYCRR 1200.0 ) rule 3.7 is required, defendants have not established that counsel's testimony would be necessary to their defense and not cumulative of the testimony that could be provided by the examining physician and plaintiff herself (see Matter of Segal v. Five Star Elec. Corp., 165 A.D.3d 613, 613–614, 84 N.Y.S.3d 777 [1st Dept. 2018], lv denied 32 N.Y.3d 919, 2019 WL 1409888 [2019] ). Because there is no basis for defendants to call counsel as a witness in these circumstances, rule 3.7(b)(1) of the Rules of Professional Conduct is not implicated, and counsel's firm should not have been disqualified. Contrary to defendants’ contention, rule 3.4(d)(2), prohibiting an attorney from asserting personal knowledge of facts when appearing before a tribunal, does not apply here.
To the extent defendants urge that counsel's interference at the IME warranted disqualification, this argument is also unavailing (see e.g. Santana v. Johnson, 154 A.D.3d 452, 452, 60 N.Y.S.3d 831 [1st Dept. 2017] ). The examining physician completed a "meaningful examination" of plaintiff at the IME, reflected by the IME report in which he was able to opine with a reasonable degree of medical certainty as to the genesis of plaintiff's symptoms, and defendants have not established that they were prejudiced by the contents of the report based on counsel's alleged intrusions ( id. ). To the extent that further information is required to prepare a defense, the remedy is not disqualification of opposing counsel but rather to permit defendants to seek further discovery to obtain that information (see e.g. Guerra v. McBean, 127 A.D.3d 462, 462–463, 4 N.Y.S.3d 526 [1st Dept. 2015] ).