Opinion
Index No. 35019/2020E
08-10-2023
Mahmoud Selim, Plaintiff, v. Mario Walter Ron Castillo, Defendant.
Plaintiff Mahmoud Selim Robert A. Hyams, Esq. Marc Gertler, Esq. The Law Offices of Robert A. Hyams Defendant Mario Walter Ron Castillo Rory T. Mulholland, Esq. Aaron P. Rogers, Esq. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP
Unpublished Opinion
Plaintiff Mahmoud Selim Robert A. Hyams, Esq. Marc Gertler, Esq. The Law Offices of Robert A. Hyams
Defendant Mario Walter Ron Castillo Rory T. Mulholland, Esq. Aaron P. Rogers, Esq. Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP
Veronica G. Hummel, J.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with Plaintiff's motion (Seq. No. 2) seeking an order disqualifying the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf and Carrone, LLP (" Abrams Fensterman ") as counsel for Defendant based on conflicts of interest and improper disqualifying conduct. Oral argument on the motion was heard before the Court virtually via Microsoft Teams on January 25, 2023. For the reasons discussed below, the motion is DENIED.
In this action, Plaintiff seeks compensation for alleged personal injuries suffered during a motor-vehicle accident that occurred on November 13, 2020, when Plaintiff was allegedly struck by Defendant's vehicle on East 169th Street in the Bronx, New York, while Plaintiff was riding his bicycle. Plaintiff allegedly suffered multiple fractures to his lumbar spine and tears in his knees requiring bilateral knee surgery.
I. Parties' Contentions
Plaintiff now moves to disqualify Abrams Fensterman from its continued representation of Defendant in this action on multiple grounds. Plaintiff relies on Rules 1.7 and 4.2 of New York's Rules of Professional Conduct (the" Rules "). As allegedly applicable here, Rule 1.7 provides 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." 22 N.Y.C.R.R. 1200, R. 1.7(a)(1), available at https://www.nycourts.gov/LegacyPDFS/rules/jointappellate/NY-Rules-Prof-Conduct-1200.pdf. And, as allegedly applicable here, Rule 4.2 provides that, "[i]n representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representations with a party the lawyer knows to be represented by another lawyer in the matter." Id., R. 4.2(a).
As the first ground for disqualification, Plaintiff contends that Abrams Fensterman's simultaneous representation of (a) Defendant's insurance carrier, Global Liberty Insurance Company (" GLIC "), in Plaintiff's claim for first-party (i.e., no-fault) benefits and (b) Defendant in this personal-injury action creates a conflict of interest under Rule 1.7. The facts on which Plaintiff relies are as follows:
• On December 14, 2020, after this action was initiated, Plaintiff received a letter from Abrams Fensterman, acting on behalf of GLIC, denying Plaintiff's no-fault-benefits claim based on the allegedly incorrect assertion that Plaintiff was eligible for Workers' Compensation benefits because the accident occurred while Plaintiff was in the course of his employment. (NYSCEF Doc. 44)
• Three weeks later, Abrams Fensterman appeared in this action on behalf of Defendant. (See generally NYSCEF docket)
• On March 11, 2021, after a hearing, the New York State Workers' Compensation Board denied Plaintiff's claim for Workers' Compensation benefits on the basis that there was no employee-employer relationship. (Id. Doc. 45)
• By letter dated March 12, 2021, Plaintiff brought the Board's decision to Abrams Fensterman's attention and demanded that it rescind its denial of Plaintiff's no-fault-benefits claim. (Id.)
• On April 30, 2021, Plaintiff was copied on a letter sent to his counsel by Abrams Fensterman acting on behalf of GLIC. (Id. Doc. 46) The letter directed Plaintiff to appear for an examination under oath (" EUO ") to, among other things, verify the causal relationship between Plaintiff's alleged injuries and the accident. (Id.) The letter also informed Plaintiff that his failure to appear at the EUO and fully answer all questions posed thereat may result in the denial of benefits. (Id.)
• The EUO occurred on May 18, 2021. Counsel from Abrams Fensterman, who questioned Plaintiff, identified himself on record as an attorney with "the law firm that represents the insurance company, [GLIC]," and stated that the examination was "part of [Plaintiff's] claim for No-Fault benefits." (Id. Doc. 47 at 3:22-4:5)
• During the EUO, Plaintiff's counsel stated on the record that Plaintiff had made a claim for Workers' Compensation benefits and that it had been denied. (Id. at 7:11-18)
• During the EUO, counsel from Abrams Fensterman asked Plaintiff questions that, according to Plaintiff, were purposed to determine whether Plaintiff and Defendant, a taxi driver, had conspired to bring this action- i.e., to determine whether the action was fraudulent. (See id. at 8:19-9:16, 10:2-7)
• Beginning on July 9, 2021, ISG Medical contacted Plaintiff directly by letter on several occasions to inform him that Abrams Fensterman had scheduled Plaintiff to appear for independent medical examinations (" IME ") and that failure to attend them could result in the termination of any benefits. (Id. Docs. 48, 52)
• By letter dated March 17, 2022, Abrams Fensterman, acting on behalf of GLIC, notified Plaintiff that, based on the results of a March 1, 2022 IME of Plaintiff, Abrams Fensterman had determined that Plaintiff was no longer disabled and, as such, no further benefits would be paid to him. (Id. Doc. 53)
• As of the date of the instant motion, GLIC had not paid any no-fault benefits to Plaintiff.
Based on these facts, Plaintiff contends that a conflict of interest exists because: (a) Abrams Fensterman was "wearing its 'Global Liberty hat' in exploring ways to link... Plaintiff to... [D]efendant and thereby deprive their own client of insurance coverage"; and (b) GLIC's refusal to pay Plaintiff no-fault benefits "will be the basis to claim special damages against [Defendant]... further expos[ing]... [D]efendant and render[ing] it harder to resolve the matter within the minimal liability policy limits afforded by [GLIC], further exposing... [D]efendant." (Id. Doc. 39, ¶¶ 24-25, 32)
As the second ground for disqualification, Plaintiff argues that Abrams Fensterman's dual representation of GLIC and Defendant has "emboldened" Abrams Fensterman to engage in further conduct violating the Rules. Specifically, Plaintiff contends that because the EUO and IME letters discussed supra were sent directly to him after the filing of this action, Abrams Fensterman violated Rule 4.2, the so-called "no contact" rule. (Id. ¶¶ 23, 31-32) Although conceding that "counsel for [GLIC] can perhaps contact [Plaintiff] with respect to his statutory and contractual rights," Plaintiff nevertheless argues that "defense counsel in this case is expressly forbidden from doing so." (Id. ¶ 23 (emphasis added))
Abrams Fensterman opposes the motion. As to Plaintiff's assertion that a conflict of interest arises from the simultaneous representation of both GLIC and Defendant, Abrams Fensterman first argues that that assertion is made "without any statutory or common law support." (Id. Doc. 56, ¶ 4) Abrams Fensterman next points out that Plaintiff's no-fault claim has not even been brought into litigation. (Id. ¶ 9) With respect to the EUO and IMEs, Abrams Fensterman asserts that, "[i]in order to properly defend [Plaintiff's] no-fault claim, [GLIC] is required to investigate the circumstances of such claims, which include[s] interviewing witnesses to determine whether a claim is actually covered." (Id. ¶ 6) Finally, because GLIC would only be required to pay damages pursuant to the applicable insurance policy if Defendant is found to have committed any negligent act causing the accident, Abrams Fensterman argues that GLIC's and Defendant's interests are actually aligned, in that it is in both of their "interest[s] for this matter to be defended as vigorously as possible by this office." (Id. ¶ 10)
In addition to the arguments that follow, Abrams Fensterman also contends that the motion should be denied because the supporting papers violate Uniform Trial Court Rule 202.8-b(c), which provides that "[e]very brief, memorandum, affirmation, and affidavit which was prepared by use of a computer shall include on a page attached to the end of the applicable document, a certification... setting forth the number of words in the document and certifying that [it] complies with the word[-]count limit." Here, Abrams Fensterman takes issue with the fact that the certification that Plaintiff submitted was not attached to his counsel's supporting affirmation but instead e-filed as a separate document. (NYSCEF Doc. 55) Abrams Fensterman attaches as Exhibit A to its opposition affirmation a decision of the Queens County Supreme Court in Gonzalez v. Benmouloud, Index No. 706804/2018, that allegedly stands for the proposition that "[f]ailure to strictly adhere to [Rule 202.8-b(c)] may serve as a basis for denial of a motion by itself." (Id. Doc. 56, ¶ 22] First, the court's decision in Gonzalez says nothing about Rule 202.8-b(c). Second, because Plaintiff's error was de minimis and does not result in any prejudice to Defendant or to Abrams Fensterman, the Court disregards it pursuant to CPLR § 2001.
As to Plaintiff's assertion that the sending of the EUO and IME letters to him constituted a violation of the no-contact rule, Abrams Fensterman points out that the letters were each sent in connection with Plaintiff's no-fault claims, and not in connection with this action, and that they were also sent to Plaintiff's counsel. (Id. ¶¶ 14-15) Abrams Fensterman argues further that the IME letters were sent by a third party, ISG Medical, and do not, in any event, constitute "communications" with a represented party because the "subject matter of the case is not discussed or referenced therein" but, instead, "merely served to put Plaintiff on notice of the date and time that he was required to attend his statutorily mandated IMEs in order to move forward with his no-fault claims." (Id. ¶¶ 16-17)
In reply, while Plaintiff concedes that Abrams Fensterman "has the right to vigorously defend [its] insured, and that ordinarily this should not present a conflict," Plaintiff maintains that Abrams Fensterman should be disqualified here because the "very same firm defending the defendant in the third-party action also conducted the investigation of the no-fault claim and continues to do so." (Id. Doc. 58, ¶¶ 4-5) Plaintiff argues further that it is irrelevant that, as Abrams Fensterman points out, the no-fault claim has not been sued upon. (Id. ¶ 6) Finally, Plaintiff notes that Abrams Fensterman "fails to deny that at least part of its investigation, and part of the EUO questioning on behalf of the insured (rather than the defendant in this case) was to explore a possible disclaimer, which would manifestly prejudice both the policy holder and driver, who they now represent." (Id. ¶ 12)
As to the EUO and IME letters, Plaintiff contends in reply that even though the letters were also sent to his counsel, that fact does not make them any less a violation of Rule 4.2. (Id. ¶ 9) Plaintiff argues further that Rule 4.2 prohibits an attorney's communication with a represented party even if the attorney did not send the communication directly, so long as the attorney caused a third-party to send the communication. (Id.) According to Plaintiff, that renders irrelevant the fact that ISG Medical sent the IME letters, since Abrams Fensterman allegedly caused ISG Medical to send them. Finally, Plaintiff argues that his no-fault claim is "directly related" to the instant case, making the EUO and IME letters a violation of Rule 4.2 despite the fact that they were sent in connection with the no-fault claim. (Id. ¶ 10)
II. Discussion
A. Plaintiff Lacks Standing to Bring the Motion
As a threshold matter, Plaintiff lacks standing to seek Abrams Fensterman's disqualification based on an alleged conflict of interest arising from its dual representation of Defendant and GLIC.
It is well settled that "[t]he basis of a disqualification motion is an allegation of a breach of fiduciary duty owed by an attorney to a current or former client." HSBC Bank USA, N.A. v. Santos, 185 A.D.3d 475, 477 (1st Dep't 2020) (citation omitted). "When a law firm targeted by [a] disqualification motion has never represented the moving party, that firm owes no duty to that party," and "if there is no duty owed there can be no duty breached." Id. (internal quotation marks and citation omitted). Here, it is indisputable that Abrams Fensterman does not represent Plaintiff either in this action or in connection with his no-fault claim. And Plaintiff has made no assertion that Abrams Fensterman represents or represented him as legal counsel in any other matter. Thus, Plaintiff clearly lacks standing to maintain the instant motion to disqualify Abrams Fensterman based on an alleged conflict of interest. Id. ("Since plaintiff never had an attorney-client relationship with either [firm], plaintiff had no standing to bring a motion to disqualify." (citation omitted)); Ellison v. Chartis Claims, Inc., 142 A.D.3d 487, 487-88 (2d Dep't 2016) (same); Manning v. Brown, 232 A.D.2d 849, 851 (3d Dep't 1996) ("[T]he conflict of interest charge leveled by plaintiff and predicated as it is on the fact that the Browns' insurance carrier provides representation to both the Browns and Amidon is meritless, for plaintiff lacks standing to assert such a claim on Amidon's behalf."); Celi Elec. Lighting, Inc. v. Sanders Constr. Corp., 41 Misc.3d 78, 80 (NY App. Term 2013) ("[P]laintiff, which is neither the present nor former client of the law firm... did not have standing to seek the law firm's disqualification from dual representation of the defendants.").
Further, Plaintiff's attempt to circumvent this fundamental requirement of standing to assert a conflict of interest is unavailing. Plaintiff argues that he has standing here because "this dual representation of both [Defendant] and [GLIC] is apparently the basis under which defense counsel has been communicating, both directly, and through its agents, with... Plaintiff." (NYSCEF Doc. 39, ¶ 27) But Plaintiff offers neither further explanation nor any support-based in caselaw or otherwise-for his novel theory that an alleged Rule 4.2 violation emanating from an alleged Rule 1.7 violation not involving his own counsel somehow affords him standing to seek disqualification of that counsel based on a conflict of interest. Plaintiff's theory is baseless and ignores the well-established sine qua non of a fiduciary duty.
B. Plaintiff Fails to Identify a Violation of the Rules Warranting Disqualification
Nevertheless, "a court has the authority to act sua sponte to disqualify counsel if it finds a conflict of interest warranting disqualification," HSBC Bank, 185 A.D.3d at 477, and so the Court examines below whether Abrams Fensterman should be disqualified based on the facts alleged by Plaintiff.
It is well settled that "[d]isqualification of counsel rests in the sound discretion of the court." Hirschfeld v. Stahl, 194 A.D.2d 388, 388 (1st Dep't 1993); Ferolito v. Vultaggio, 99 A.D.3d 19, 27 (1st Dep't 2012); see also Sanyang v. Davis, 198 A.D.3d 522 (1st Dep't 2021) ("The motion court providently exercised its discretion in granting defendants' cross motion to disqualify plaintiffs' counsel.").
A court must exercise its discretion, however, within certain confines and with certain guiding principles in mind. "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." Levy v. 42 Dune Rd., LLC, 162 A.D.3d 651, 652-53 (2d Dep't 2018) (internal quotation marks and citations omitted); see also S & S Hotel Ventures Ltd. P'ship v. 777 S.H. Corp., 68 N.Y.2d 437, 443 (1987) ("Disqualification of a law firm during litigation implicates not only the ethics of the profession but also the substantive rights of the litigants. Disqualification denies a party's right to representation by the attorney of its choice." (citation omitted)). "Disqualification of a party's chosen counsel... is a severe remedy which should only be done in cases where counsel's conduct will probably taint the underlying trial." Mancheski v. Gabelli Grp. Capital Partners, Inc., 22 A.D.3d 532, 534 (2d Dep't 2005) (internal quotation marks omitted). Therefore, a court must "carefully scrutinize[]" any attempt to disqualify counsel, S & S Hotel Ventures Ltd. P'ship, 68 N.Y.2d at 443; Mayers v. Stone Castle Partners, LLC, 126 A.D.3d 1, 6 (1st Dep't 2015) (citation omitted), and, accordingly, the movant, "bears a heavy burden" to show that disqualification is warranted. Mayers, 126 A.D.3d at 6. "Courts should also examine whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation." Id. (citation omitted).
i. Plaintiff Fails to Demonstrate that Abrams Fensterman's Dual Representation Violates Rule 1.7
"The general rule is that a lawyer may not represent adverse interests or undertake to discharge conflicting duties." Rappaport v. Blank, 74 A.D.2d 745, 746 (1st Dep't 1980). "There are exceptional instances when he may do so, when the conflict of interests is nominal or negligible, or where there has been complete disclosure. Except in the latter instance, acting for conflicting interests is always fraught with peril." Id. "The question whether there is a conflict of interest must be resolved in favor of disqualification." USA Recycling, Inc. v. Baldwin Endico Realty Assocs., Inc., 147 A.D.3d 697, 698 (1st Dep't 2017) (citing In re Strasser, 129 A.D.3d 457 (1st Dep't 2015); Abney v. Smartstop, No. 651177/2021, 2023 WL 2933727, at *3 (NY Sup. Ct. NY Cty. Apr. 5, 2023); 25 E. 83rd Owner 1 LLC v. J.H. Pappas Enters., Inc., No. 155863/2020, 2021 WL 4170279, at *4 (NY Sup. Ct. NY Cty. Sept. 13, 2021) ("[I]t is worth noting, yet again, the Appellate Division, First Department's, guidance that any doubts as to the existence of a conflict of interest must be resolved in favor of disqualification." (citing Justinian Capital SPC, 90 A.D.3d at 585)).
Here, again, Plaintiff relies on two sets of circumstances in his attempt to demonstrate that Abrams Fensterman is conflicted:
(1) that Abrams Fensterman, in the course of investigating Plaintiff's claims for no-fault benefits, posed questions to Plaintiff that suggested Abrams Fensterman was seeking to establish a basis for GLIC to disclaim coverage; and
(2) that Abrams Fensterman, on behalf of GLIC, denied Plaintiff no-fault benefits, thereby providing a basis for Plaintiff to claim his medical costs as special damages in this action.
Plaintiff's first asserted basis for the existence of a conflict is easily rejected. A conflict of interest may arise when an insurer provides its insured with defense counsel under a reservation of rights or outright disclaims coverage for an incident. See 11 Essex St. Corp. v. Tower Ins. Co. of NY, 70 A.D.3d 402, 402-03 (1st Dep't 2010); NHL v. TIG Ins. Co., 76 Misc.3d 427, 432 (NY Sup. Ct. NY Cty. 2022) ("Where 'the insurer's interest in defending the lawsuit is in conflict with the [insured's] interest... [the insured] is entitled to defense by an attorney of his own choosing, whose reasonable fee is to be paid by the insurer.' Where an insurer defends under a reservation of rights, the insured is entitled to retain its own counsel." (quoting Public Serv. Mut. Ins. Co. v. Goldfarb, 53 N.Y.2d 392, 401 (1981))); Booth v. Continental Ins. Co., 167 Misc.2d 429, 436 (NY Sup. Ct. Westchester Cty. 1995) ("[W]here an insurer disclaims coverage or reserves the right to do so, it is generally improper for an attorney to represent both the insured and the insurer in the same action." (citing 7A C.J.S., Attorney and Client § 156)); see also Exec. Risk Indem. Inc. v. Icon Title Agency, LLC, 739 F.Supp.2d 446, 450 (S.D.NY 2010) ("[T]he insured's right to independent counsel is only triggered when the reservation of rights creates a potential conflict of interest for the counsel provided by the insurer, and in particular, where the defense attorney's duty to the insured would be to defeat liability on any ground but his duty to the insurer would be to defeat liability on only those grounds for which the insurer might be liable." (citing Public Serv. Mut. Ins. Co., 53 N.Y.2d at n. *)). But neither of those things has apparently occurred here. Plaintiff submits no evidence demonstrating that GLIC is providing a defense to Defendant under a reservation of rights or has disclaimed coverage altogether. Nothing in the record, besides a mere handful of questions posed to Defendant during his EUO, even suggests that GLIC contemplates avoiding its obligation to indemnify Defendant, should he be found liable for damages herein, on the ground that the accident was fraudulent. To the Court's knowledge, based on all of the parties' submissions, the line of questioning at issue never actually matured into a litigation position by GLIC that would give rise to a conflict of interest with Defendant (and thus lead to grounds for disqualification of Abrams Fensterman). Abrams Fensterman's questions alone are simply insufficient to create such a conflict and justify their disqualification as Defendant's appointed counsel.
Plaintiff's second asserted basis for the existence of a conflict must also be rejected. Initially, however, the Court notes that, in support of his argument, Plaintiff does not cite any case in which a court considered analogous circumstances in the context of a disqualification motion under Rule 1.7. Nor, upon its own research, has the Court been able to find any such case, suggesting that the issue is novel.
For guidance, the Court looks to the Official Comments to the Rules. Specifically, Comment 8 addresses when differing interests giving rise to a conflict of interest within the meaning of Rule 1.7 exist:
Differing interests exist if there is a significant risk that a lawyer's exercise of professional judgment in considering, recommending or carrying out an appropriate course of action for the client will be adversely affected or the representation would otherwise be materially limited by the lawyer's other responsibilities or interests. For example, the professional judgment of a lawyer asked to represent several individuals operating a joint venture is likely to be adversely affected to the extent that the lawyer is unable to recommend or advocate all possible positions that each client might take because of the lawyer's duty of loyalty to the others. The conflict in effect forecloses alternatives that would otherwise be available to the client. The mere possibility of subsequent harm does not itself require disclosure and consent. The critical questions are the likelihood that a difference in interests will eventuate and, if it does, whether it will adversely affect the lawyer's professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client.
Based on Comment 8, Plaintiff fails to carry his heavy burden to demonstrate that Abrams Fensterman's denial of Plaintiff's no-fault benefits on GLIC's behalf gives rise to a disqualifying conflict of interest in this action. Plaintiff offers no convincing reason why such denial would adversely affect Abrams Fensterman's professional judgment "in considering, recommending or carrying out an appropriate course of action" for Defendant in defending Plaintiff's claims herein. Indeed, GLIC's and Defendant's interests-to defeat Plaintiff's claims in the action-appear to be fully aligned.
Nor has Plaintiff offered any convincing reason why the denial of his no-fault benefits by Abrams Fensterman would materially limit their representation of Defendant in this action. The denial does not appear to have resulted in any constraints on Abrams Fensterman to take a specific litigation position that would benefit GLIC but be detrimental to Defendant (or vice versa). Nor does it appear that any course of action on behalf of Defendant, including settlement of this matter, is necessarily foreclosed to Abrams Fensterman by a conflicting fiduciary duty to GLIC created by the denial.
Plaintiff argues, nevertheless, that the denial of his no-fault benefits constitutes grounds for him to seek to recover the costs of his medical care from Defendant as special damages, thereby adding to Defendant's potential exposure and, in turn, making settlement of this matter more challenging. But that argument is no more convincing than any other Plaintiff has made so far. Again, Plaintiff provides no caselaw support for his argument. And, even if settlement proves to be more difficult due to the denial of Plaintiff's no-fault benefits, settlement still would not necessarily be foreclosed to Defendant as a viable course of action. Further, taking a step back in the analysis, the potential harm of a more difficult settlement is, at this point in time, based on the filings and the Court's current understanding of this case's posture, mere conjecture. As Comment 8 makes clear, "[t]he mere possibility of subsequent harm does not itself" give rise to a conflict of interest. Besides, any increased difficulty would not be solved by Abrams Fensterman's disqualification. Even if Abrams Fensterman were disqualified, and Defendant were forced to acquire his own independent counsel, the same circumstances would still exist. Any attorney or law firm that might then step into Abrams Fensterman's shoes would confront the same potential issues. Defendant, therefore, does not derive any obvious benefit from the disqualification of his appointed counsel.
For the reasons discussed above, the Court finds that Plaintiff fails to demonstrate that Abrams Fensterman's dual representation of GLIC and Defendant constitutes a conflict of interest under Rule 1.7.
ii. Plaintiff Fails to Demonstrate that Any Violation of Rule 4.2 by Abrams Fensterman Warrants Disqualification
Again, Rule 4.2(a) provides, in relevant part, that, "[i]n representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter." 22 N.Y.C.R.R. 1200, R. 4.2(a). Plaintiff contends that Abrams Fensterman violated Rule 4.2 by, both directly and indirectly, sending Plaintiff numerous letters and notices after the commencement of this action. Abrams Fensterman counters that the letters and notices were sent in connection with Plaintiff's separate no-fault claim, were not "communications" within the meaning of the rule, and, in many cases, were sent by a third-party.
Similar to Plaintiff's contentions concerning Abrams Fensterman's alleged conflict of interest, neither party has provided the substantive analysis and legal support that would assist the Court in resolving the questions at hand. Both parties' papers are perfunctory and conclusory. For example, neither addresses, in any substantive manner with citation to potentially applicable caselaw or bar association opinions, whether Abrams Fensterman's communications were or should be considered "about the subject of the representation" or whether Abrams Fensterman made the communications "[i]n representing a client" and "in th[is] matter" as meant by the rule. Given the apparently unique circumstances involved in this case, the answer to neither question is clear. And, unlike the conflict-of-interest issue discussed supra, the Official Comments to Rule 4.2 do not offer sufficient guidance.
The motion, which seeks Abrams Fensterman's disqualification, can, however, still be resolved without determining whether Abrams Fensterman's communications violated Rule 4.2. Even presuming that they did, Plaintiff fails to demonstrate that disqualification is an appropriate sanction or remedy.
"Generally, a violation of the Rules of Professional Conduct, while relevant to the issue whether the attorney's continued participation will taint a case, is not, in and of itself, sufficient to warrant disqualification." Harris v. Erie Cty. Med. Ctr. Corp., 175 A.D.3d 1104, 1106 (4th Dep't 2019) (citing Morin v. Trupin, 728 F.Supp. 952, 956-57 (S.D.NY 1989); In re Essex Equity Holdings USA, LLC, 29 Misc.3d 371, 375 (NY Sup. Ct. NY Cty. 2010)); see also Roberts v. Corwin, 118 A.D.3d 571, 573 (1st Dep't 2014) ("While disqualifying counsel is a lesser penalty than dismissal of a complaint, it carries with it the serious consequence that a party is deprived of the right to be represented by its choice of counsel, warranting a broader inquiry about whether it is an appropriate sanction for the offending conduct." (emphasis added) (citations omitted)). Here, even if the Court were to assume that Abrams Fensterman's communications violated Rule 4.2, Plaintiff still fails to establish that he suffered any prejudice whatsoever or that the trial will be in any way tainted as a result of the communications. At bottom, the communications each provided Plaintiff with nothing more than notice of an insurance coverage decision or notice to appear for-as Plaintiff effectively concedes-statutorily required examinations, all in the context of Plaintiff's claim for no-fault benefits from GLIC. There does not appear to be any dispute that Plaintiff's counsel was copied on the communications. And there is no allegation that Plaintiff's counsel was prevented from attending any of the examinations. Indeed, the transcript of Plaintiff's EUO, submitted herein as an exhibit by Plaintiff, demonstrates that he was represented by counsel at the EUO. While Plaintiff claims that Abrams Fensterman likely gained access to medical reports and records maintained in GLIC's no-fault file without the benefit of HIPAA authorizations, Plaintiff fails to argue, let alone establish, that Abrams Fensterman acquired those records through improper or illegal means or that Defendant would not be entitled, in any event, to obtain those same records and materials in the ordinary course of discovery. See Harris, 175 A.D.3d at 1106 ("Based on our review of the records..., we cannot conclude that plaintiff's attorney obtained any information that he could not have otherwise obtained in the ordinary course of discovery." (citations omitted)).
Thus, even if Abrams Fensterman's communications violated Rule 4.2, based on the facts currently in the record on the motion, the Court concludes that disqualification of Abrams Fensterman is not warranted.
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the parties was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby
ORDERED that Plaintiff's motion (Seq. No. 2) seeking an order disqualifying the law firm of Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara, Wolf and Carrone, LLP as counsel for Defendant based on conflicts of interest and improper disqualifying conduct is DENIED; and it is further
ORDERED that the Clerk shall mark the motion (Seq. No. 2) decided in all court records.
This constitutes the Decision and Order of the Court.