Opinion
No. 504062/2012.
07-10-2014
Regina KEY, Marchette L. Lynch and Evelyn Whidbee, Plaintiffs, v. ARROW LIMO INC. and Yevegeny Karetnikov, Defendants.
Opinion
Petitioner Regina Key's ex parte application for an order approving an Infant Compromise is denied on the papers, without a hearing, with leave to renew, for the reasons stated herein.
This case concerns an automobile accident which took place on July 13, 2012. The subject infant, Marchette Lynch, is not denoted as such in the caption, and her mother, Regina Key, also a plaintiff, is not denoted in the caption as the child's mother and natural guardian. The third plaintiff is an adult child of Ms. Key. The court is aware of this information and the relationship between the parties only because it appears in the affirmation of the plaintiffs' attorney, and the affidavits of the parties which accompany the motion.
Plaintiff Key (mother of the infant Lynch) was the driver and owner of one of the two vehicles involved in the accident, and the accident report indicates that there may be an issue of comparative negligence regarding Ms. Key. This issue is raised by both the points of impact on the cars and the statement of the other driver in the Police Report. Additionally, the defendants have made this allegation in their counterclaim. As such, the mother's insurance policy may also be available for the child's claims. Therefore, the mother is not an appropriate party to serve as the child's guardian for the purposes of an infant compromise, and, in fact, should probably be a named defendant in the action.
Thus, as the driver/owner of the vehicle in which her daughter was injured while a passenger, Ms. Key has a conflict of interest. Christie v. Kramer, 37 Misc.3d 1224(A) [Sup Ct, Kings County 2012]. The conflict of interest between Ms. Key as the operator of the vehicle, and the infant, Marchette Lynch, as an injured plaintiff/passenger in the vehicle, may not be waived, as Marchette, as an infant, is presumed to lack the ability to knowingly waive the conflict. See Sidor v. Zuhoski, 261 A.D.2d 529 [2nd Dept 1999] ; Matter of H. Children, 160 Misc.2d 298, 301 [Fam Ct, Kings County 1994] ; Christie v. Kramer, 37 Misc.3d 1224(A) [Sup Ct, Kings County 2012] ; Domestic Relations Law § 2 ; CPLR 105[j].
Therefore, the court, pursuant to CPLR 1202, directs the removal of Ms. Key as guardian of Marchette Lynch in this matter. See Christie v. Kramer, 37 Misc.3d 1224(A) [Sup Ct, Kings County 2012] ; Matter of Riddell, 78 Misc.2d 150 [Sup Ct, N.Y. County 1973]. The plaintiff must bring a motion for the court to appoint a guardian ad litem for Marchette Lynch. The matter is stayed as to all of the plaintiffs pending the appointment of a guardian ad litem for Marchette Lynch. Further, counsel for the plaintiffs states in his affirmation that neither he, nor his office is “directly or indirectly concerned in the settlement at the instance of the party or person opposing, or with interests averse to, the infant.” This is demonstrably untrue.
There is an inherent ethical conflict of joint representation that exists between a driver and an injured passenger. See, Quinn v. Walsh, 18 AD3d 638 [2nd Dept 2005] ; Pessoni v. Rabkin, 220 A.D.2d 732 [2nd Dept 1995] ; Christie v. Kramer, 37 Misc.3d 1224(A) ; Shaikh v. Waiters, 185 Misc.2d 52 [Sup Ct, Nassau County 2000] ; Ganiev v. Nazi, 189 Misc.2d 83 [App Term, 2nd Dept 2001]. Furthermore, because a child may bring an action against his or her own parents, it is improper for an attorney to represent both the parent who was the driver and the child who was a passenger, in an action brought against the owner and driver of the other vehicle. See, Sidor v. Zuhoski, 261 A.D.2d 529 [2nd Dept 1999] ; Pessoni v. Rabkin, 220 A.D.2d 732 [2nd Dept 1995] ; Christie v. Kramer, 37 Misc.3d 1224(A) ; NY State Bar Assn. Ethics Report 69–112.
The attorney's conflict of interest is clear. The child needs her own attorney. See, Pessoni v. Rabkin, 220 A.D.2d 732;Sidor v. Zuhoski, 261 A.D.2d 529;Fugnitto v. Fugnitto, 113 Misc.2d 666 [App Term 2nd Dept 1982]. It is well within the discretionary power of the court to disqualify an attorney who is so conflicted. Boyd v. Trent, 287 A.D.2d 475, 476 [2nd Dept 2001] ; Mondello v. Mondello, 118 A.D.2d 549 [2nd Dept 1986] ; Christie v. Kramer, 37 Misc.3d 1224(A).
The Code of Professional Responsibility, in situations involving representation of people with adverse interests, is to protect clients, both ignorant and sophisticated, maintain the integrity of the legal system and prevent even honest attorneys from serving mutually antagonistic interests. Booth v. Continental Ins. Co., 167 Misc.2d 429, 435–436 [Sup Ct, Westchester County 1995] ; Christie v. Kramer, 37 Misc.3d 1224(A). If Ms. Key was comparatively negligent, Ms. Key is liable in her individual capacity. Alcantara v. Mendez, 303 A.D.2d 337 [2nd Dept 2002] ; Christie v. Kramer, 37 Misc.3d 1224(A). Clearly, the interests of Ms. Key and her daughter Marchette conflict, and therefore, counsel's continued joint representation of the plaintiffs results in a violation of the ethical rule requiring an attorney to represent a client zealously. See, Alcantara v. Mendez, 303 A.D.2d 337, 338;Christie v. Kramer, 37 Misc.3d 1224(A).
For the foregoing reasons, plaintiff Marchette Lynch's counsel is disqualified from continuing to represent her in this action. The court notes that these issues were brought to counsel's attention in a letter dated May 6, 2014. At the time, the court gave counsel 60 days to respond. Counsel has sent the court a letter asking the court to “hold the file open” until the imminent settlement of the other two plaintiffs' claims “which will clear up any appearance of conflict.” This indicates a complete lack of comprehension of his obligations to the child. Counsel's duty of loyalty and zealous representation to Marchette Lynch would clearly be compromised if all of the insurance money is distributed to Ms. Key and her adult daughter before the court can even review the child's claims.
The court is cognizant that the child's injuries might be deemed relatively minor, although exactly how minor is unclear. Although counsel has stated in his affirmation that Marchette suffered “only muscle spasms and whiplash,” so the proposed settlement of $14,000 is sufficient, the affirmation from her physician describes plaintiff Lynch as a 60–year old woman. Nonetheless, the voluminous medical records attached to the application indicate that the accident may have caused Marchette, now 16, to suffer disc herniations and sprains and strains in her neck, and that she had sharp neck and upper back pain radiating to her chest for months after the accident, as well as radiating pain to her shoulders and numbness in both her arms. At her September 2012 examination, her doctor said her injuries were directly related to the accident. She wore a neck brace and had physical therapy and rehabilitation treatments for some period of time after the accident.The proposed Order of Compromise includes the settlement of the claims of the third plaintiff, Evelyn Whidbee, who, as an adult, does not fall within the ambit of CPLR § 1207. The claim of plaintiff Whidbee cannot be a part of the Order of Compromise for the infant plaintiff Lynch.
In conclusion, for the foregoing reasons, plaintiff's counsel is disqualified from continuing to represent Marchette Lynch in this action. Further, pursuant to CPLR 1202, the court orders the removal of Ms. Key as guardian for Marchette Lynch in this matter. See Christie v. Kramer, 37 Misc.3d 1224(A) ; Matter of Riddell, 78 Misc.2d 150. Should plaintiff Lynch's family elect to settle this matter during the infant's minority, petitioner's counsel must move for the appointment of a guardian ad litem for Marchette Lynch under Article 12 of the CPLR for the purposes of settling this matter, and the proposed guardian ad litem must appear before this court and consent to serve, both in writing and on the record. The infant's parents or custodial parent must consent as well.
Counsel's name is omitted to protect his privacy, should this decision be published.
It is further ordered that counsel may not settle either Ms. Whidbee's claims or Ms. Key's claims until the child's matter is resolved, as it is not proper to exhaust the insurance available before the child's claims are resolved.
It is further ordered that any future proposed settlement be submitted, via the Clerk of the Court, to the undersigned, and not to any other judge.
This shall constitute the Decision and Order of the Court.