Opinion
230/2003.
Decided July 13, 2006.
After approximately seven years of pretrial litigation this case comes before this Court for a liability trial. Plaintiffs Grigoriy and Sofiya Groysman commenced this action against Christine and Ann Sibrizzi after allegedly sustaining personal injuries as a result of a motor vehicle accident. The defendants interposed a counterclaim against plaintiff Grigoriy Groysman.
The accident occurred on January 28, 1997, when Mr. Groysman was driving his vehicle at or near the intersection of 14th and Ovington Avenues, in Brooklyn. Mrs. Groysman, his wife, was seated in the rear and their son was seated in the front passenger seat. Defendant Christine Sibrizzi was the driver of the other vehicle, which was owned by her mother, Ann Sibrizzi.
At the outset, plaintiffs' counsel submitted a letter executed by Sofiya Groysman that essentially waived her rights as against her husband, the driver of the vehicle in which she was a passenger. A discussion regarding the waiver took place on the record. The defendants objected to the waiver, but did not make a motion to disqualify plaintiffs' attorneys. This Court found the waiver to be valid. The trial ensued and the jury returned a verdict indicating that the defendant and plaintiff drivers were equally liable for the accident.
Prior to the commencement of the damages trial, counsel for Mr. Groysman on the counterclaim made a motion in limine requesting a dismissal of all claims and counterclaims against Mr. Groysman pursuant to Mrs. Groysman's waiver. The waiver letter was marked as Court Exhibit "A". This Court reserved decision on that motion. Thereafter, defense counsel made a motion to disqualify plaintiffs' attorney from representing both Mr. and Mrs. Groysman due to the conflict of interest that exists between a driver and a passenger of the same vehicle, which was further established by the 50% verdict against Mr. Groysman. This Court reserved decision on the motion, disbanded the jury and allowed the parties to submit briefs.
The oral arguments were held on May 31, 2006. Defense counsel for Mr. Groysman on the counterclaim argued that the counterclaim should be dismissed based upon Mrs. Groysman's waiver, which effectively released Mr. Groysman and his insurance carrier from any liability due to the accident. There was no opposition to that motion. The motion is granted.
With respect to the motion to disqualify, the defendants contended that counsel's representation of both plaintiffs constituted a conflict of interest in violation of New York Disciplinary Rules 5-105(a). 22 NYCRR 1200.24(a). Defendant argued that there is an actual conflict considering the 50% liability verdict against Mr. Groysman. Plaintiffs' counsel violated his professional responsibility by representing both plaintiffs. Pessoni v. Rabkin, 220 AD2d 732 (2nd Dept. 1995); Sidor v. Zuhoski, 261 AD2d 529 (2nd Dept. 1999). In addition, Mrs. Groysman's rights were not represented since a disinterested attorney was not involved in Mrs. Groysman's decision to waive her rights. Shaikh v. Waiters, 185 Misc 2d 52 (NY Sup. Ct Nassau County 2000).
Plaintiffs opposed this motion indicating first that this matter had been ongoing for approximately seven years and the defendants never raised the issue. At this juncture, the motion prejudices the plaintiffs considering the time and money already expended and the prospect of having to engage new counsel. Moreover, according to Insurance Law § 3420(g), no policy or contract shall be deemed to insure against any liability of an insured because of death of or injury to his or her spouse unless the policy expressly indicates same. State Farm Mutual Automobile Insurance Company v. Westlake, 35 NY2d 587 (1974). Therefore, no source of recovery exists for Mrs. Groysman. Indeed, Mrs. Groysman is barred from recovering from Mr. Groysman's insurance carrier. Thus, there is no conflict of interest.
In reply, defendant correctly argued that a wife may sue her husband for tortuous acts. General Obligations Law § 3-313. Defendant also contended that the purpose of Insurance Law § 3420(g) was to protect an insurer against collusive actions by husbands and wives. In addition, the defendant asserted that the provision in Mr. Groysman's policy goes against public policy.
This Court finds that the defendant failed to properly interpret Insurance Law § 3420(g). Although spouses have the right to sue one another for tortuous acts, an insurance carrier will not be called upon to indemnify a wife due to the liability of her husband unless there is an express provision in the policy. State Farm Mutual Automobile Insurance Company, supra. The defendant failed to proffer any express language from Mr. Groysman's insurance policy that allows indemnity on behalf of Mrs. Groysman. Furthermore, there is no merit to defendants' contention that Mr. Groysman's policy goes against public policy. Hence, Insurance Law § 3420(g) applies herein, and Mr. Groysman's carrier will not indemnify Mrs. Groysman.
This Court maintains its determination that Mrs. Groysman's waiver is valid. Moreover, the doctrine of laches applies to this matter. Thus, the defendant has waived its right to seek disqualification of plaintiffs' counsel. Thomas Supply Equipment Company v. White Fathers of Africa, Inc., 53 AD2d 607 (2nd Dept. 1976); Schertz v. Jenkins, 4 Misc 3d 298 (NY Civ. Ct Kings County 2004); Lewis v. Unigard Mutual Insurance Company, 83 AD2d 919 (1st Dept. 1981); Dukas v. Davis Aircraft Products Co., Inc., 123 AD2d 304 (2nd Dept. 1986); Lucci v. Lucci, 150 AD2d 650 (2nd Dept. 1989); Barr v. Raffe, 111 AD2d 31 (1st Dept. 1985); Fugnitto v. Fugnitto, 113 Misc 2d 666 (2nd Dept. 1982).
Accordingly it is ordered that
The motion to dismiss the counterclaim is granted. Defendant's motion to disqualify is denied. It is further ordered that all parties will select a jury on September 22, 2006 and a damages trial will commence before this Court on September 25, 2006.
This constitutes the decision and order of this Court.