Opinion
Index No. 061084/2016 Motion Sequences 1 &4
07-22-2019
EARL SCOTT, ANDRE LUIS FRERNANDEZ, Plaintiff, v. LACINA KOLLORE, NALGIA FERNANDEZ Defendants.
Unpublished Opinion
DECISION AND ORDER
COLANGELO, J.
The following papers were read on Defendant Lacina Koilore's Motion for Summary Judgment (Motion Sequence #1) and Defendant Nalgia Fernandez's Motion to Disqualify Plaintiffs counsel (Motion Sequence #4):
| Motion Sequence #1 | NYSCEF |
| Notice of Motion-Affirmation-Exhibits A-L | 23-36 |
| Opposition-Affirmation-Exhibits A-K | 55-67 |
| Reply Affirmation-Exhibit M . | 68-69 |
| Motion Sequence #4 | |
| Notice of Motion-Affirmation-Exhibits A-G | 73-81 |
Upon the foregoing papers it is ORDERED that the motions are disposed of as follows:
Motion Sequence #1
This is an action for personal injuries allegedly sustained by Plaintiffs Earl Scott ("Scott") and Andre Luis Fernandez ("A. Fernandez") as a result of a motor vehicle accident which occurred on September 18, 2013 at approximately 3:00-3:30 pm on Ashburton Avenue approaching Park Avenue in Yonkers, New York. Scott was a front seat passenger in a vehicle driven and owned by his wife, Defendant Nalgia Fernandez. His step-son, Plaintiff Andre Luis Fernandez was a back seat passenger. The vehicle in which Plaintiff Scott was riding came into contact with the vehicle driven by Defendant Lacinda Kollore.
Plaintiffs commenced this action by the electronic filing of a Summons and Verified Complaint against both Defendants on August 9, 2016. (Exh. A to Kollore Motion). Issue was' joined by Defendant Koilore's filing of a Verified Answer with Cross-Claim on September 29, 2016. (Exh. C to Kollore Motion), and Defendant Nalgia Fernandez's filing of a Verified Answer on July 9, 2018. (Exh. B to Kollore Motion).
Plaintiffs' responses to Defendants' Demands for a Verified Bill of Particulars set forth the injuries alleged to have been sustained by each of the Plaintiffs as a result of the accident (Exhs. E ¶9 &F ¶13 to Kollore Motion, respectively), and are incorporated by reference herein.
Plaintiff Scott
The medical evidence submitted in opposition to the instant motion consists of the following:
1. Exhibit B: Medical Records of Physical Medicine and Rehabilitation of Ne w York
2. Exhibit C: Affirmed MRI reports of the lumbar spine and right knee by Dr. Steven Winter.
3. Exhibit D: Medical records of orthopedic surgeon, Dr. Emmanuel Hostin.
4. Physical therapy records
5. Narrative report of Dr. Guatam Khakhar, a physiatrist at Physical Medicine and Rehabilitation of New York.
On October 16, 2013, less than one month after the accident, Plaintiff Scott underwent a physiatric examination by Dr. Vincent Huang, a doctor affiliated with Physical Medicine and Rehabilitation of New York. The results of the testing done via an objective hand-held goniometer indicated range of motion limitations as follows:
Cervical spine: Tenderness and painful range of motion. Flexion 35 degrees (normal 50 degrees). Extension 45 degrees (normal 60 degrees).. Left rotation 30 degrees (normal 80 degrees). Right rotation 35 degrees (normal 80 degrees). Left side bending 30 degrees (normal 50 degrees). Right side bending 30 degrees (normal 50 degrees).
Lumbar spine: Flexion 80 degrees (normal 90 degrees). Extension 10 degrees (normal 30 degrees). Left side bending 15 degrees (normal 25 degrees). Right side bending 15 degrees (normal 25 degrees). Left sided rotation 30 degrees (normal 45 degrees). Right sided rotation 30 degrees (normal 45 degrees).
Right knee: Positive edema. Extension 5 degrees (normal 0 degrees). Flexion 110 degrees (normal 140 degrees). Positive McMurray's test. (P1. Exh. B).
A follow-up examination was conducted by Dr. Huang on December 20, 2013 . An initial examination was conducted by an Orthopedic surgeon, Dr. Emmanuel Hostin on October 31, 2013 and a follow-up examination took place on January 9, 2014. The ranges of motion for hyperextension/extension/flexion of the right knee and left knee was 0/0/120 and 0/0/135, respectively (normal degrees is 0/0/150 for both). Further follow-up examinations were conducted by Dr. Huang on March 11, 2014, April 29, 2014 and April 26, 2017. .
During the April 26, 2017 examination, Dr. Huang noted that Plaintiff Scott presented with "low back pain worsening with bending, sitting, and lifting. Right knee pain worsening with motion activity, stair climbing, and walking." Range of motion testing of the lumbar spine and right knee via an objective hand held goniometer revealed the following restrictions:
Lumbar flexion:
75 degrees (normal 90 degrees), a 17% loss of lumbar flexion.
Lumbar extension:
25 degrees (normal 30 degrees), a 17% loss of lumbar extension.
Lumbar left lateral bending:
20 degrees (normal 25 degrees), a 20% loss of lumbar left lateral bending.
Lumbar left rotation:
35 degrees (normal 45 degrees), a 22% loss of left lumbar rotation.
Lumbar right rotation:
40 degrees (normal 45 degrees), an 11% loss of lumbar right rotation.
Right knee flexion:
115 degrees (normal 140 degrees), an 18% loss of right knee flexion.
Prognosis: "As Mr. Scott continues to have lower back pain and right knee pain 3.5 years post trauma with positive diagnostic testing, he has sustained significant injuries to the lumbar spine and right knee. With the above-stated continued complaints, positive examination findings, positive diagnostic test result, and significantly diminished range of motion, he has sustained permanent significant injuries to the lumbar spine and right knee and subsequently, the prognosis for a full and complete recovery remains poor." (P1. Exh. B).
Dr. Gautam Khakhar examined Plaintiff Scott on August 15, 2018 and noted that he complained of low back pain worsening with bending, sitting, and lifting, as well as right knee pain worsening with motion activity, stair climbing, and walking. Range of motion testing of the lumbar spine and right knee was done via an objective goniometer and revealed the following:
Lumbar flexion:
70 degrees (normal 90 degrees), a 22% loss.
Lumbar extension:
25 degrees (normal 30 degrees), a 17% loss.
Lumbar left lateral bending:
20 degrees (normal 25 degrees), a 20% loss.
Lumbar left rotation:
35 degrees (normal 45 degrees), a 22% loss.
Lumbar right rotation:
40 degrees (normal 45 degrees), an 11% loss.
Right knee flexion:
110 degrees (normal 140 degrees), a 21% loss.
Dr. Khakar concluded with a reasonable degree of medical certainty that based upon the history given by the patient and the objective findings, including signs on physical examination, objective testing, decreased range of motion and lower extremity weakness, that the accident was the direct cause of Plaintiff Scott's injuries. (Pl. Exh. F, pp 7-10).
Plaintiff A. Fernandez
The medical evidence submitted in opposition to the instant motion consists of the following:
1. Exhibit H: St. John's Riverside Hospital record.
2. Medical records of Physical Medicine and Rehabilitation of New York, including the affirmed medical report of Dr. Pedro Gonzales
3. Affirmed MRI reports of the lumbrosacral spine and cervical spine
4. Narrative report by Dr. Gautam Khakar, a physiatrist at Physical Medicine and' Rehabilitation of New York.,
On September 27, 2013, nine days after the accident, Plaintiff A. Fernandez underwent an examination by Dr. Pedro Gonzalez, a physiatrist affiliated with Physical Medicine and Rehabilitation of New York. The results of the testing done via an objective hand-held goniometer indicated range of motion limitations as follows:
Cervical spine: Tenderness on palpation of the cervical paraspinal muscles. Flexion 40 degrees (normal 50 degrees). Extension 40 degrees (normal 60 degrees). Left rotation 45 degrees (normal 80 degrees). Right rotation 50 degrees (normal 80 degrees). Left side bending 20 degrees (normal 50 degrees). Right side bending 20 degrees (normal 50 degrees).
Lumbar spine: Flexion 60 degrees (normal 90 degrees). Extension 10 degrees (normal 30 degrees). Left side bending 15 degrees (normal 25 degrees). Right side bending 10 degrees (normal 25 degrees). Left rotation 25 degrees (normal 45 degrees). Right rotation 20 degrees (normal 45 degrees).
Left knee: Tenderness on palpation on the medial and lateral joints. Range of motion 0120 (normal 0-140 degrees). (Pl. Exh. I).
A follow-up examination was conducted by Dr. Khakhar on January 9, 2014 which revealed the following range of motion findings via use of a hand held gonimeter:
Cervical spine: tenderness with painful range of motion. Range of motion of the cervical spine revealed flexion 40 degrees (normal 50 degrees), extension 45 degrees (normal 60 degrees), left-sided rotation 55 degrees (normal 80 degrees), right-sided rotation 50 degrees (normal 80 degrees), left-side bending 35 degrees (normal 50 degrees), right-sided bending 30 degrees (normal 50 degrees).
Lumbar spine: range of motion revealed flexion 70 degrees (normal 90 degrees), extension 15 degrees (normal 30 degrees), left-sided bending 15 degrees (normal 25 degrees), right-sided bending 15 degrees (normal 25 degrees), left-sided rotation 25 degrees (normal 45 degrees), right-sided rotation 25 degrees (normal 45 degrees).
Left knee tenderness and pain at end-range of motion with extension 0 degrees (normal full to 0 degrees) and flexion 130 degrees (normal 140 degrees).
Dr. Gautam Khakhar examined Plaintiff A. Fernandez on August 15, 2018 and noted that he complained of neck pain, low back pain, and left knee pain, worsening with motion activity, turning, bending, sitting, ambulating, weight bearing, mobility, and transportation.. Range of motion testing of the cervical spine, lumbar spine and right knee was done via an objective goniometer and revealed the following:
Cervical spine: tenderness with painful range of motion,
extension 50 degrees (normal 60 degrees)
flexion 45 degrees (normal 50 degrees)
left rotation 65 degrees (normal 80 degrees)
left-sided bending 40 degrees (normal 50 degrees) .
right-sided bending 40 degrees (normal 50 degrees):
Lumbar flexion: 70 degrees (normal 90 degrees), (a 22% loss).
Lumbar extension: 25 degrees (normal 30 degrees), (a 17% loss).
Lumbar left-sided bending: 20 degrees (normal 25 degrees), (a 20% loss).
Lumbar left rotation: 35 degrees (normal 45 degrees), (a 22% loss).
Lumbar right rotation: 40 degrees (normal 45 degrees), (an 11% loss).
Left knee flexion: flexion of 110 degrees (normal 140 degrees), (a 21% loss)..
Dr. Khakar concluded with a reasonable degree of medical certainty that based upon the history given by the patient and the objective findings, including signs on physical examination, objective testing, decreased range of motion and lower extremity weakness, that the accident was the direct cause of Plaintiff A. Fernandez's injuries. (Pl. Exh. K, pp 7-10).
Motion for Summary Judgment
Defendant Kollore has moved for an Order pursuant to CPLR §3212 and Insurance Law §§ 5104(a) and 5102(d) granting her motion for summary judgment dismissing Plaintiffs' Complaint and any cross claims with prejudice for failure to satisfy any definition of "serious injury" under the Insurance Law. In support of the motion, Defendant references Plaintiffs' Scott and Fernandez Bills of Particulars (Def. Exhs. E &F, respectively), the deposition testimony of Plaintiff Scott and Fernandez (Defs. Exhs. H &I, respectively), the medical report of an examination of Plaintiff Scott by Harvey Fishman on behalf of Country Wide Insurance Company (Def. Exh. J) and the orthopedic evaluations of Plaintiffs Scott and A. Fernandez by defense Dr. Steven Klein. (Def. K &L, respectively).
Dr. Klein opined via testing with a hand held goniometer that there was no loss of range of motion in Plaintiff Scott's cervical spine or in either knee. A similar opinion was given relative to Plaintiff A. Fernandez's cervical spine, lumbar spine and both knees. In each evaluation, Dr. Klein found that all complaints made by the Plaintiffs were resolved at the time of his evaluation.
The "Serious Injury" Threshold Motion
CPLR §3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
In Andre v Pomeroy, 35 N.Y.2d 361, 364 (1974), the Court of Appeals held that:
[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law ... when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.
It is well-settled that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [citations omitted]. Failure to make such a showing requires the denial of the motion, regardless of the sufficiency of the opposing papers [citations omitted]." Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985); Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 (1993); Finkelstein v Cornell University Medical College, 269 A.D.2d 114, 117 (1st Dept. 2000). As provided in the Insurance Law, under the "No Fault" statute there is no right of recovery for personal injuries arising out of negligence in the use or operation of a motor vehicle within the state, except in the case of "serious injury" or for basic economic loss, (see Insurance Law § 5104). The term "serious injury" is defined by condition-specific categories in Insurance Law § 5102(d), as a personal injury . .
"[W]hich results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for hot less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
While summary judgment is available in some cases, its dire, case terminating effects preclude its use except in "unusually clear" instances. Stone v Aetna Life Ins. Co., 178 Mise. 23, 25 (Sup. Ct., New York County,1941). "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for its mere existence tends to alter our jurisprudential concept of a 'day in court.'" Wanger v Zeh, 45 Misc.2d 93, 94, (Sup. Ct., Albany County, 1965), aff'd 26 A.D.2d 729 (3rdDept. 1966). Given the fact that summary judgment is the procedural equivalent of a trial, granting summary judgment requires that no material or triable issues of fact exist. When doubt exists or where an issue is arguable, or "fairly debatable," summary judgment must be denied. Bakerian v H.F. Horn, 21 A.D.2d 714 (1st Dept. 1964); Jones v County of Herkimer, 51 Misc.2d 130, 135 (Sup. Ct., Herkimer County, 1966); Town of Preble v Song Mountain, Inc., 62 Misc.2d 353, 355 (Sup. Ct., Courtland County, 1970); See also, Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 404 (1957).
The movant has the burden of submitting evidence, in admissible form, to support the summary judgment motion. Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). Unsworn documents are inadmissible evidence and thus a party's reliance thereon in support of a motion for summary judgment is improper. See Huntington Crescent Country Club v. M&M Auto & Marine Upholstery, Inc., 256 A.D.2d 551, 551 (2nd Dept. 1998).
It is well established that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient admissible evidence to eliminate any material issues of fact from the case, (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 321 [1986]; Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1985]; Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993]; S.J. Capelin Associates, Inc. v Globe Manufacturing Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 480 [1974]; Finkelstein v. Cornell University Medical College, 269 A.D.2d 114, 117 [1st Dept. 2000]). The moving party must affirmatively demonstrate the merits of its claim or defense, and cannot obtain summary judgment merely by "pointing to gaps in its opponent's proof." Kajfasz v. Wal-Mart Stores, Inc., 288 A.D.2d 902, 902 (4th Dept. 2001); Dodge v City of Hornell Industrial Development Agency, 286 A.D.2d 902, 903 (4th Dept. 2001); Frank v Price Chopper Operating Co., Inc., 275 A.D.2d 940 (4th Dept. 2000).
Failure by the movant to meet this burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers". Alvarez v. Prospect Hosp, supra', Winegrad v New York University Medical Center, supra, 64 N.Y.2d at 853; See, also, Miccoli v Kotz, 278 A.D.2d 460, 461 (2d Dept. 2000); Karras v County of Westchester, 272 A.D.2d 377, 378 (2d Dept. 2000); Fox v Kamal Corporation, 271 A.D.2d 485 (2d Dept. 2000); Gstalder v State of New York, 240 A.D.2d 541, 542 (2d Dept. 1997); Lamberta v Long Island Railroad, 51 A.D.2d 730, 730-731 (2d Dept. 1976); Greenberg v. Manion Realty, Inc., 43 A.D.2d 968, 969 (2d Dept. 1974).
A defendant moving for summary judgment under Insurance law §5102(d) bears the initial burden of establishing prima facie, by competent medical evidence, that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955 [1992]; Walker v Village of Ossining, 18 A.D.3d 867 [2d Dept. 2005]).
A defendant must demonstrate that all injuries presented by plaintiff fail to establish a serious injury. Minori v Hernandez Trucking Co. Inc., 239 A.D.2d 322 (2d Dept. 1997). The omission of one of the foregoing will result in the denial of defendant's motion for summary judgment. See, Meyer v. Gallardo, 260 A.D.2d 556, 557 (2d Dept. 1999). Failing to affirmatively demonstrate that an alleged injury was not causally related to the subject accident requires a denial of defendant's motion for summary judgment as having failed to make out a prima facie case. See, Lubrano v Brown, 251 A.D.2d 3.83 (2d Dept. 1998); Fouad v Riser, 246 A.D.2d 508 (2d Dept. 1998), Feuerman v Achtar, 246 A.D.2d 577 (2d Dept. 1998).
Defendants herein have attempted to show that Plaintiff failed to sustain a "serious injury" as a result of the accident by reliance upon the report of an examination of Plaintiff Scott by Dr. Harvey Fishman on behalf of Country Wide Insurance Company and the orthopedic evaluations of both Plaintiffs Scott and A. Fernandez which took place on March 27, 2018 by defense witness, Dr. Steven Klein. The Defendants' doctors used the same objective hand held goniometer used by the doctors who examined Plaintiffs, and opined that the cervical and lumbar spine and both knees of each Plaintiff had full range of motion.
Based upon the Fishman and Klein reports, Defendant met her prima facie burden of showing that Plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 N.Y.2d 345 [2002]; Gaddy v Eyler, 79 N.Y.2d 955, 956-957 [1992]). Where the moving party has tendered medical evidence in support of its contention that a "limitation" is insignificant in nature, and the opposing party has failed to raise a triable issue of fact to the contrary, summary judgment has been granted. (See Casco v Cocchiola, 62 A.D.3d 640 [2d Dept.2009][defendant's examining orthopedic surgeon tendered evidence that plaintiffs lumbar flexion was insignificant in nature, and where in opposition, plaintiff failed to raise a triable issue of fact]; see also Lively v. Fernandez, 85 A.D.3d 981 [2d Dept. 2011] [where defendant was held to have met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident where the limitation noted in the range of motion of the plaintiffs cervical spine during the examination conducted by the defendant's examining neurologist was insignificant within the meaning of Insurance Law § 5102 (d), and where the opinion of plaintiff's doctor that plaintiff sustained significant limitations in the cervical and lumbar regions of his spine was based upon a single examination conducted shortly after the accident]).
Moreover, while a significant limitation of use of a body function or member "need not • be permanent in order to constitute a 'serious injury,' . . . any assessment of the 'significance' of a bodily limitation necessarily requires consideration not only of the extent or degree of the limitation, but of its duration as well." (Lively v. Fernandez, 85 A.D.3d 981 quoting Partlow v. Meehan, 155 A.D.2d 647, 647-648 [2d Dept. 1989], where the Second Department reversed the denial of defendants' summary judgment motion on the grounds that plaintiff s significant bodily limitation was substantial in degree but fleeting in duration and did not qualify as a serious injury, notwithstanding the lack of temporal requirement for a "significant limitation" set forth in Insurance Law § 5102(d)]).
A plaintiffs medical proof of the extent or degree of a physical limitation may take the form of either an expert's "designation of a numeric percentage of plaintiff s loss of range of motion", or a qualitative assessment of plaintiffs condition "provided that the evaluation has an objective basis and compares the plaintiffs limitations to the normal function, purpose and use of the affected body, organ, function or system" (Toure v. Avis Rent A Car Sys., Inc., supra at 350). In Altreche v. Gilmar Masonry Corp., 49 A.D.3d 479 (2d Dept. 2012), the opinion of plaintiffs treating physician that the disc bulges at C2 through C5 and a disc herniation at L5-S1 seen on the cervical and lumbar magnetic resonance imaging ("MRI") reports as well as range of motion limitations observed upon examination of plaintiff were permanent and causally related to the subject accident raised a triable issue of fact as to whether plaintiff sustained a serious injury under the permanent loss and permanent consequential and/or significant limitation of use categories of insurance Law 5102(d) to her cervical and/or lumbar spines as a result of the accident. In Guttierez v. Yonkers Contracting Co., 61 A.D.3d 823 (2d Dept. 2009), the court found a triable issue of fact as to whether serious injury was sustained under the significant limitation of or the permanent consequential limitation of use categories of Insurance law 5102(d) by medical submissions of plaintiffs treating physician and neurologist which opined that plaintiffs lumbosacral spine injuries, evidenced by significant contemporaneous lumbar spine range of motion limitation upon examination and a disc herniation at L3-4 upon review of MRI films, amounted to a significant restriction of mobility and a permanent consequential limitation of use of his lumbosacral spine that were permanent and causally related to the accident.
In the instant case, as demonstrated above, the examinations of both Plaintiffs on August 15, 2018, almost five years after the accident indicated loss of range of motion in the lumbar region and right knee of Plaintiff Scott, and loss of range of motion in the cervical spine, lumbar spine and left knee of Plaintiff A. Fernandez, the extent of which has been quantified in the "designation of a numeric percentage of plaintiffs loss of range of motion", via an objective hand held goniometer and compared to the normal function, purpose and use of the affected body, organ, function or system" (Toure v. Avis Rent A Car Sys., Inc., supra at 350). .
Based upon the foregoing, this Court finds that Plaintiffs have shown more than a mild, minor, or slight injury or limitation to establish a permanent or significant limitation due to a serious injury, and in so doing, have raised a triable issue of fact as to whether they sustained a serious injury within the meaning of the no-fault statute. Williams v. Fava Cab Corp., 90 A.D.3d 912 (2d Dept. 2011) quoting Licari v. Elliot, 57 N.Y.2d 230, 236 (1982).
Accordingly, Defendant's motion fo summary judgment is denied.
Sequence #4 .
Defendant Nalgia Fernandez has moved for an Order disqualifying Plaintiffs' counsel from continued representation of any plaintiff in this action, as well for all costs and reimbursements for expenses associated with making this motion. The Affirmation of her attorney, Eugene N. Neporanny, Esq., is submitted in support of the instant motion.
The basis for disqualification asserted by Defendant Fernandez is her contention that Plaintiffs' current attorneys, Nichols and Cane, LLP, previously represented her as a plaintiff in a lawsuit brought against Defendant Lacinda Kollore arising out of this accident, bearing Supreme Court Westchester County Index Number 62645/15, as the Summons in that action indicates. (Defi Exh. D). That matter was resolved and a Stipulation of Discontinuance was filed on December 14, 2016. (Def. Exh. G). Thereafter, a Consent to Change Attorney was filed on behalf of Plaintiffs, whereby Nichols and Cane became the attorneys of record for Plaintiffs Scott . and A. Fernandez.
In Greene v. Greene, 47 N.Y.2d 447 (1979), the Court of Appeals spoke to the issue of attorney representation and the loyalty owed to the client:" It is a long-standing precept of the legal profession that an attorney is duty bound to pursue his client's interests diligently and vigorously within the limits of the law (Code of Professional Responsibility, canon 7). For this reason, a lawyer may not undertake representation where his independent professional judgment is likely to be impaired by extraneous considerations. Thus, attorneys historically have been strictly forbidden from placing themselves in a position where they must advance, or even appear to advance, conflicting interests [internal citations omitted]; Code of Professional Responsibility, DR5-105. An attorney traditionally has been prohibited from representing a party in a lawsuit where an opposing party is the lawyer's former client [internal citations omitted]. Underlying this rule is the notion that an attorney, as part of his fiduciary obligation, owes a continuing duty to a former client broader in scope than the attorney-client evidentiary privilege not to reveal confidences learned in the course of the professional relationship (see Watson v. Watson, 171 Mise. 175, 176, 11 N.Y.S.2d 537, 538). To obtain disqualification of the attorney, the former client need not show that confidential information necessarily will be disclosed in the course of the litigation; rather, a reasonable probability of disclosure should suffice."
The Court notes that no opposition was submitted to this application. Based upon the foregoing, Defendant Fernandez's motion is granted and the law firm of Nichols and Cane, LLP are hereby disqualified from further representation of the Plaintiffs in this action. Plaintiffs have a period of thirty days in which to obtain new counsel.
Accordingly, it is hereby
ORDERED that Defendant Koilore's motion for summary judgment is in all respects denied; and it is further
ORDERED that the firm of Nichols and Cane are hereby disqualified from further representation of Plaintiffs; and it is further
ORDERED that Plaintiff have thirty days from the date of this Decision and Order to obtain counsel, during which period, further proceedings in this action are stayed; and it is further
ORDERED that all parties and counsel shall appear at the Settlement Conference Part, Courtroom 1600 on September 10, 2019 at 9:15 am.
The foregoing constitutes the Decision and Order of the Court.