Opinion
# 2013-045-040 Claim No. 118655 Motion No. M-84150 Cross-Motion No. CM-84270
11-27-2013
MARTIN TANKLEFF v. THE STATE OF NEW YORK
Claimant's attorney: Barket, Marion, Epstein & Kearon, LLP By: Bruce A. Barket, Esq. Defendant's attorney: Hon. Eric T. Schneiderman, Attorney General By: Robert J. Schwerdt, Assistant Attorney General
Synopsis
motion to compel non-party to answer deposition questions after the witness took the 5th.
Case information
+-----------------------------------------------------------------------------+ ¦UID: ¦2013-045-040 ¦ +------------------------------+----------------------------------------------¦ ¦Claimant(s): ¦MARTIN TANKLEFF ¦ +------------------------------+----------------------------------------------¦ ¦Claimant short name: ¦TANKLEFF ¦ +------------------------------+----------------------------------------------¦ ¦Footnote (claimant name) : ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Defendant(s): ¦THE STATE OF NEW YORK ¦ +------------------------------+----------------------------------------------¦ ¦Footnote (defendant name) : ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Third-party claimant(s): ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Third-party defendant(s): ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Claim number(s): ¦118655 ¦ +------------------------------+----------------------------------------------¦ ¦Motion number(s): ¦M-84150 ¦ +------------------------------+----------------------------------------------¦ ¦Cross-motion number(s): ¦CM-84270 ¦ +------------------------------+----------------------------------------------¦ ¦Judge: ¦GINA M. LOPEZ-SUMMA ¦ +------------------------------+----------------------------------------------¦ ¦ ¦Barket, Marion, Epstein & Kearon, LLP ¦ ¦Claimant's attorney: ¦ ¦ ¦ ¦By: Bruce A. Barket, Esq. ¦ +------------------------------+----------------------------------------------¦ ¦ ¦Hon. Eric T. Schneiderman, Attorney General ¦ ¦Defendant's attorney: ¦ ¦ ¦ ¦By: Robert J. Schwerdt, Assistant Attorney ¦ ¦ ¦General ¦ +------------------------------+----------------------------------------------¦ ¦Third-party defendant's ¦ ¦ ¦attorney: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Signature date: ¦November 27, 2013 ¦ +------------------------------+----------------------------------------------¦ ¦City: ¦Hauppauge ¦ +------------------------------+----------------------------------------------¦ ¦Comments: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Official citation: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦Appellate results: ¦ ¦ +------------------------------+----------------------------------------------¦ ¦See also (multicaptioned case)¦ ¦ +-----------------------------------------------------------------------------+ Decision
The following papers were read and considered by the Court on these motions: Defendant's Notice of Motion, Defendant's Affirmation with annexed Exhibits A-C, Claimant's Notice of Cross-Motion, Claimant's Affirmation in Opposition and in Support of Cross-Motion with annexed Exhibits A-EE and Defendant's Affirmation in Opposition and Reply with annexed Exhibit.
Defendant, the State of New York, has brought a motion seeking an order pursuant to the Rules of Professional Conduct, Section 3.7, disqualifying claimant's attorney Bruce A. Barket from representing claimant and permitting defendant to call Mr. Barket as a witness at trial. Claimant opposes the motion and moves for sanctions against defendant in bringing the instant motion.
The underlying claim in this matter concerns an action brought under Court of Claims Act §8-b, the Unjust Conviction Act for the wrongful conviction of Martin Tankleff after claimant's convictions were overturned on the grounds of newly discovered evidence.
It is well settled that a party's right to be represented by counsel of their choosing is a valued right which should not be abridged without a clear showing that disqualification is warranted (Trimarco v Data Treasury Corp., 91 AD3d 756 [2d Dept 2012]). "The advocate-witness rules contained in the Rules of Professional Conduct (see 22 NYCRR 1200.0), provide guidance, but are not binding authority, for the courts in determining whether a party's attorney should be disqualified during litigation" (Trimarco v Data Treasury Corp., 81 AD3d 756, 757 [2d Dept 2012]). Rule 3.7 of the Rules of Professional Conduct sets forth that a lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.
In order to establish that counsel should be disqualified, the moving party must demonstrate that the testimony of the opposing party's counsel is necessary to his or her case, and that such testimony would be prejudicial to the opposing party (S&S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437 [1987]; Trimarco v Data Treasury Corp., 81 AD3d 756 [2d Dept 2012]).
In this case, defendant has failed to demonstrate that the disqualification of Mr. Barket was warranted as they have not satisfied either requirement. In determining whether an attorney's testimony is necessary, the court must consider the relevance of the expected testimony, the significance of the matters, weight of the testimony and the availability of other evidence (S&S Hotel Ventures Ltd. Partnership v 777 S.H. Corp., 69 NY2d 437, 446 [1987]). Defendant has not shown that Mr. Barket's testimony was necessary as there are other witnesses able to testify to that which defendant seeks to elicit. Moreover, defendant failed to demonstrate that Mr. Barket's testimony would be prejudicial to claimant.
In regard to claimant's motion for sanctions, 22 NYCRR 206.20 states that the provisions of Part 130 of the Rules of the Chief Administrator of the Courts shall be applicable to the Court of Claims. Pursuant to 22 NYCRR 130-1.1 (a), "[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct . . . . In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct."
22 NYCRR 130-1.1 (c) defines frivolous conduct as conduct that is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; conduct that is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or conduct that asserts material factual statements that are false. "In determining whether the conduct was frivolous, the court shall consider, among other issues the (1) circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party" (22 NYCRR 130-1.1 [c]).
As it cannot be said that defendant's motion is completely without merit, the Court is disinclined to impose sanctions at this juncture.
Therefore, for the foregoing reasons, defendant's motion is denied. Claimant's cross-motion is also denied.
November 27, 2013
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims