DEBORAH BYNUM, Individually and as Administrator of the Estate of HEATHER BYNUM, Deceased, Respondent,
CAMP BISCO, LLC, et al., Appellants.
Calendar Date: April 25, 2017
Wallens Gold & Mineaux, LLP, Albany (Matthew J. Kelly of
counsel), for appellants.
LaFave, Wein & Frament, PLLC, Guilderland (Paul H. Wein
of counsel), for respondent.
Before: Garry, J.P., Lynch, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Versaci, J.), entered
March 4, 2016 in Schenectady County, which, among other
things, partially granted plaintiff's cross motion to,
among other things, compel discovery.
matter was previously before the Court (135 A.D.3d 1060');">135 A.D.3d 1060
; 135 A.D.3d 1066');">135 A.D.3d 1066 ). Briefly, plaintiff's
daughter, Heather Bynum, sustained serious and ultimately
fatal injuries after ingesting a harmful substance while
attending a music festival known as Camp Bisco . Defendants
include Camp Bisco, LLC (the manager and operator of the
festival), Indian Lookout Country Club, Inc. and Francis H.
Potter, Jr. (the owners of the premises), Peter L. Brodie and
Allison G. Onorat (two individuals in charge of coordinating
medical transportation), and MCP Presents, LLC and Meatcamp
Productions, Inc. (the promoters) . At issue on this appeal
is plaintiff's demand for festival ticket sale records
from 2008 through 2012 . Finding the discovery request was
material and relevant to plaintiff's claim, Supreme Court
denied defendants' motion for a protective order and
ordered defendants to produce the requested records. Insofar
as plaintiff also cross-moved to disqualify defense counsel
from representing all of the defendants, the court directed
defense counsel to provide written statements from each
defendant addressing any potential conflict of interest.
affirm. With respect to the ticket sale records, we have
previously recognized that plaintiff has stated a viable
negligence cause of action "based upon defendants'
alleged failure to provide adequate onsite emergency medical
services" (135 A.D.3d at 1067). The premise for this
claim is "that, despite their apparent knowledge,
defendants circumvented their duty to provide the proper
level of medical services at the festival by misrepresenting
to the relevant permitting authorities that the maximum
attendance for the 2012 edition of Camp Bisco attended by
Bynum would be just 12, 000 people" (id.).
Under the State Sanitary Code, the level of required health
care facilities and staff on site increases with heightened
attendance (see 10 NYCRR 18.4 [a]). Since the record
indicates that attendance increased throughout the relevant
period to as many as 25, 000 attendees in 2011, the ticket
sale records are clearly material and relevant to
plaintiff's claim. As such, Supreme Court properly
exercised its broad discretion in directing defendants to
produce the records.
respect to defense counsel's potential conflict of
interest, we first note that defendants failed to preserve
any objection that plaintiff lacked standing to raise the
issue or failed to file her cross motion in a timely manner.
Nor did Supreme Court err in ordering defense counsel to
obtain the written statements. "[A] lawyer shall not
represent a client if a reasonable lawyer would conclude
that... the representation will involve the lawyer in
representing differing interests" (Rules of Professional
Conduct [22 NYCRR 1200.0] rule 1.7 [a]; accord Shelby v
Blakes, 129 A.D.3d 823, 825 ). Notwithstanding
such a conflict, a lawyer may still represent a client if
"(1) the lawyer reasonably believes that the lawyer will
be able to provide competent and diligent representation to
each affected client; (2) the representation is not
prohibited by law; (3) the representation does not involve
the assertion of a claim by one client against another client
represented by the lawyer in the same litigation or other
proceeding before a tribunal; and (4) each affected client
gives informed consent, confirmed in writing" (Rules of
Professional Conduct [22 NYCRR 1200.0] rule 1.7 [b]; see
Giammona v 72 Mark Lane, LLC, 143 A.D.3d 941, 943
; Ferolito v Vultaggio, 99 A.D.3d 19, 27
). All Supreme Court's order effectively does is
assure compliance with this rule . Considering the
differing roles of each defendant, we conclude that Supreme
Court prudently directed defense counsel to provide the
J.P., Rose and Aarons, JJ., concur.
that the order is affirmed, with costs.
 During the pendency of this appeal, Bynum
passed away. In March 2017, an order was issued substituting
Deborah Bynum, individually and as administratror of
Bynum's estate, as plaintiff. In addition, although two
actions were originally commenced against the various