Opinion
Index No.: 13853-11
01-20-2017
CALMAN GREENBERG, as Representative of ESTATE OF RUTH GREENBERG, Plaintiff, v. GRACE PLAZA NURSING & REHABILITATION CENTER, PINEGROVE MANOR II, LLC, SENTOSOCARE, LLC and MYLES E. GOMBERG, M.D., Defendants.
PRESENT: HON. JEROME C. MURPHY, Justice. Motion Date: 11/21/16
Sequence Nos.: 001, 002
MoD, MoD
DECISION AND ORDER
The following papers were read on this motion:
Sequence No . 001 :
Notice of Motion, Affirmation and Exhibits ............................................................. 1
Sequence No . 002 :
Notice of Cross Motion, Affirmation and Exhibits....................................................2
Affirmation in Opposition to Motion and Cross Motion, Affidavit of Distributee and Exhibit...............................................................................................................3
Reply Affirmation of Myles E. Gombert, M.D..........................................................4
Reply Affirmation of Grace Plaza, Pinegrove Manor and Sentosacare, LLC............5
PRELIMINARY STATEMENT
In Sequence No. 001, defendant, Myles E. Gombert, brings this application for an order: (1) pursuant to CPLR § 3211(a)(3) and (7) dismissing the action as a nullity as the pro se representative of the estate lacks the capacity to bring the instant action as the action is not brought on behalf of his own interests but on that on the decedent's Estate's interest and as such is prohibited from preparing the pleadings used to commence this action; and (2) for such other, further and different relief that this Court may deem just and proper.
In Sequence No. 002, defendants, Grace Plaza Nursing Home & Rehabilitation Center, Pinegrove Manor II, LLC and Sentosacare, LLC bring this application for an order: (1) pursuant to CPLR § 3211(a)(3) and (7) dismissing the action as a nullity as the pro se representative of the estate lacks the capacity to bring the instant action as the action is not brought on behalf of his own interests but on that on the decedent's estate's interest and as such is prohibited from preparing the pleadings used to commence this action; and (2) for such other, further and different relief that this Court may deem just and proper.
BACKGROUND
Plaintiff commenced this action for medical malpractice by filing a Summons and Complaint on September 17, 2010 (Exh. "A"). Plaintiff designated Queens County as the venue, based upon decedent's last residence. By Order dated August 11, 2011, the matter was transferred to Nassau County (Exh. "C" to Cross-motion). The Appellate Division, by Decision and Order dated January 16, 2013, affirmed the transfer on the ground that at the time the action was commenced, none of the parties resided in Queens County (Exh. "E" to Motion). On April 14, 2011, Queens County Surrogate's Court appointed Caiman Greenberg as Administrator of the Estate of Ruth Greenberg (Exh. "A" to Affirmation in Opposition). Mr. Greenberg is an attorney licensed to practice in New York.
Myles E. Bombert, M.D. moves in Motion Sequence No. 1, and defendants Grace Plaza Nursing Home & Rehabilitation Center, Pinegrove Manor II, LLC, and Sentosacare, LLC move in Motion Sequence No. 2 for dismissal of the action on the ground that the pro se representative of the Estate of Ruth Greenberg lacks the capacity to bring the action on behalf of the interests of decedent's Estate, and, as such, is prohibited from preparing the pleadings by which the action was commenced.
Caiman Greenberg is the son of decedent Ruth Greenberg, and, along with his father, Earl Greenberg, are beneficiaries of the Estate. In his affirmation in opposition to the Motion and Cross-motion, Caiman Greenberg identifies himself as "the plaintiff, Representative of the Estate of Ruth Greenberg, and am also acting as counsel for plaintiff in the above captioned action . . ." (Affirmation in Opposition). The Court notes that CPLR § 2106 authorizes the use of an affirmation by an attorney, but only when he is not a party to the action. Nevertheless, the Court will consider the Affirmation.
DISCUSSION
Dismissal is an inappropriate remedy for a claim that Caiman Greenberg is likely to be a fact witness in the action, is a joint beneficiary of the Estate, and should therefor be disqualified from representing the Estate. As stated in Matter of the Estate of Thomas Walsh, Deceased, 17 Misc.3d 407 (Surr.Ct., Bronx 2007), when attorneys themselves are parties to litigation, the right of the litigant to represent themselves individually at a trial in which they will testify, is a narrow exception to the strong public policy which otherwise requires disqualification (Id. at 410). Where, however, the attorney is representing another entity, in this case his mother's Estate, and he is likely to be a fact witness on a significant issue of fact, the Rules of Professional Conduct, 22 NYCRR § 1200.0, provide that he ". . . shall not act as an advocate . . ."
In Matter of Deans, et al., 92 A.D.3d 879 (2d Dept. 2012), the Court reversed a determination of the Supreme Court, Queens County, which disqualified an attorney who acted as a co-administrator with his client from representing the co-administrators, based upon the trial court's determination that there was a "blanket conclusion that a fiduciary of an estate does not have the same right to self-representation as he or she otherwise has in an individual capacity." Noting that " ' [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' ", 22 NYCRR § 1200.0 provides that " '[a] lawyer shall not act as an advocate before a tribunal in a manner in which the lawyer is likely to be a witness on a significant issue of fact.' " But "a different result should obtain where, as here, an attorney is the fiduciary of an estate, he or she is accounting for his or her own conduct in the unique circumstances of an accounting proceeding." (Id. at 880 — 881).
In Deans, the co-administrators opposed the motion by the attorney and his co-administrator to settle and compromise a wrongful death action which had been brought against the hospital in which decedent died. The objectants challenged the legal fees that the co-administrator/attorney charged the estate for the representation of the estate in the wrongful death action, and sought to impose a $600,000 surcharge on the co-administrators, representing damages which objectant alleged were caused by a communication to a bidder at the auction sale that the bid was for a one-third interest in the property, rather than the entire property.
Under these unique circumstances of an accounting proceeding, wherein the sole issue, in effect, is the conduct of the fiduciary, the fiduciary's interest in the right of self-representation should prevail over the interests of the beneficiaries of the estate (Id. at 881)(internal citations omitted).
The instant action does not present such a unique circumstance in which the conduct of the representative of the estate is being challenged, and thus there is no overriding right for him to represent himself in the proceeding. The motions by defendants are granted, but only to the extent that Caiman Greenberg is disqualified from continued representation as the counsel for the Estate of Ruth Greenberg, since he is likely to be called as a fact witness with respect to the claims of malpractice and negligence alleged in the Complaint. Caiman Greenberg and Earl Greenberg are directed to execute a Consent to Change Attorney with an attorney of their choosing, within 30 days of service upon them of a copy of this Decision and Order with Notice of Entry.
To the extent that requested relief has not been granted, it is specifically denied.
This constitutes the Decision and Order of the Court. Dated: Mineola, New York
January 20, 2017
ENTER:
/s/ _________
JEROME C. MURPHY
J.S.C.