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Tavarez v. Hill

January 5, 2009

JOSE TAVAREZ, EMELY ESTHER TAVAREZ, ESTEPHANY TAVAREZ, AND CLARA GUZMAN, PLAINTIFF(S),
v.
OLEN HILL, ROBIN HILL, MOHAMMED MUSAH, AND A-ONE TRANSPORTATION, INC., DEFENDANT(S).



The opinion of the court was delivered by: Paul A. Victor, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

PRELIMINARY ISSUE PRESENTED

Should the court, sua sponte, stay the motion made for summary judgment until there is a final resolution of a potential "conflict of interest" issue arising from plaintiffs' counsel's representation of multiple parties in the same action?

RELIEF REQUESTED

Defendants Mohammed Musah and A-One Transportation [hereinafter Musah] and the defendants Olen Hill and Robin Hill [hereinafter Hill] move for summary judgment and dismissal of the complaint pursuant to CPLR 3212, for the alleged failure of all four plaintiffs to establish that each sustained a "serious injury", as that term is defined in Section 5102 of the Insurance Law.

BACKGROUND

The three vehicle accident underlying this case took place on June 23, 2003 on the Major Deegan Expressway near Park Avenue in the Bronx. At that time, the vehicle driven by plaintiff Jose Tavarez , was in collision with the vehicles owned and driven by the defendants. The plaintiffs, Emely Esther Tavarez, Estephany Tavarez and Clara Guzman were passengers in the vehicle owned and driven by plaintiff Jose Tavarez, and each plaintiff ( including the driver) alleges that he/she sustained a "serious injury", as that term is defined in Insurance Law §5102.

In support of the motion, the defendants have submitted, among other things, numerous affirmations from physicians in various specialties. In opposition, counsel for the plaintiffs has submitted only unaffirmed medical reports and test results; and in adddition, failed to address arguments made by the defendants as to "gaps in treatment" and the failure to provide evidence of "recent" examinations supporting the serious injury claims made by each said plaintiff.

A review of the record reveals that the same attorney represents the plaintiff driver (José Tavarez) as well as the three passenger plaintiffs. Defendant Musah, in his answer, has interposed a counterclaim against plaintiff Jose Tavarez and cross-claims against defendant Hill, and the defendant Hill has interposed cross-claims against the Musah defendants.

Plaintiff Jose Tavarez had previously moved for summary judgment on the issue of liability, but this motion was denied with leave to renew, by order of Justice Schachner, dated September 28, 2007. The court's records reflect that no additional motion on the issue of liability has been made; and thus, there is a meaningful risk that counsel for plaintiffs may be burdened with a conflict of interest, since the issue of liability of each driver is yet to be determined, and, in this proceeding, the passenger plaintiffs may have interests adverse to those of their driver.

DISCUSSION

An attorney who chooses to represent multiple parties in the same action will risk being held to have violated the Code of Professional Responsibility (and its applicable Disciplinary Rules); as well as sanctioned for having engaged in a conflict of interest; and in addition thereto, suffer the indignity and cost of becoming a defendant in a malpractice action.

Canon 5 of the Code of Professional Responsibility provides in part that "the professional judgment of a lawyer should be exercised... solely for the benefit of the client and free of compromising influences and loyalties..." (Code of Professional ...


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