Opinion
Index No. CV-003389-18/QU
07-20-2023
State Farm Mutual Automobile Insurance Company as Subrogee of Shum, Plaintiff(s), v. Pakov and Allicock, Defendant(s).
Plaintiff's counsel: Nicolini, Paradise, Ferretti & Sabella, PLLC Defendant's counsels: The Law Offices of Peter A. Saad, Jr., P.C. Ali and Bains, PC.
Unpublished Opinion
Plaintiff's counsel: Nicolini, Paradise, Ferretti & Sabella, PLLC
Defendant's counsels: The Law Offices of Peter A. Saad, Jr., P.C.
Ali and Bains, PC.
Hon. Wendy Changyong Li, J.C.C.
A virtual bench trial was conducted before this Court on October 17, 2022. Plaintiff was represented by Nicolini, Paradise, Ferretti & Sabella, PLLC through Ammendolea, Esq. (" Ammendolea ") and Defendant was represented by the Law Office of Ali & Bains, P.C. via Bains, Esq. (" Bains ").
BACKGROUND
Plaintiff commenced the action by filing a Summons and Complaint on February 8, 2018 for money damage in the amount of $21,351.43 plus interest. Defendant answered on July 24, 2018 through its attorney Bains (representing both defendants in the instant matter) and again on February 14, 2019 through its attorney the Law Offices of Peter A. Saad, Jr. P.C. (" Saad ") (also representing both defendants). Neither Bains nor Saad was discharged as attorney of record by their clients. On March 19, 2019, Plaintiff filed the Notice of Trial, and this matter was placed on the Part 15, Non-Jury Trial part. After few adjournments, this matter was assigned to Part 107 on April 21, 2020 for Hon. K to conduct trials. On July 9, 2021, Hon. K issued a Pre-Trial Decision and Order (" Pre-Trial Order ") directing parties to appear for a virtual bench trial on July 14, 2021 through Microsoft Teams. Defendant, through Saad, filed a Notice of Appeal (" Appeal ") on July 10, 2021 with regard to the Pre-Trial Order and the appellate decision was received by Queens Civil Court on February 4, 2022 indicating that the Appeal was dismissed. The matter was placed back to Part 15 calendar on August 2, 2022 over which then Queens Civil Court Supervising Judge Patria Frias-Colon ("J. Frias-Colon") presided. J. Frias-Colon adjourned the matter to October 17, 2022 for "FINAL" virtual bench trial and conferenced the case in the afternoon of Friday October 14, 2022 when parties reached out to J. Frias-Colon's office as to the status. During the October 14, 2022 pre-trial conference, although both counsels, Ammendolea and Bains, requested an adjournment, being unable to settle or resolve the matter, J. Frias-Colon denied counsels' request for adjournment and directed counsels to attend the virtual bench trial as "FINAL" as originally scheduled on October 17, 2022.
In the morning of October 17, 2022 at 9:37am, J. Frias-Colon re-assigned the trial to this Court via an email stating that the virtual bench trial was scheduled to proceed at 2:00pm the same day and instructed this Court to send out a Microsoft Team invite to counsels for the virtual bench trial. This trial was one of the eleven (11) jury trials and twenty-four (24) bench trials for Term 11 of calendar year 2022 assigned to this Court by J. Frias-Colon for the Part 15 and Part 20 matters over which J. Frias-Colon presided, in addition to this Court's regular calendar parts, following her assignment of thirty-seven (37) trials, including thirteen (13) jury trials and twenty-four (24) bench trials, to this Court for Term 10 of calendar year 2022, in addition to being assigned to other calendar parts. This Court immediately obtained the contact information of counsels and conducted this Court's pre-trial conference promptly at 10:30am. Although counsels renewed their request for adjournment, under the "no-adjournment" policy of the Supervising Judge Frias-Colon where it was required that all jury trial adjournments had to be discussed with and to be approved by J. Frias-Colon herself, this Court instructed counsels to appear for the 2:00pm trial, considering that J. Frias-Colon had instructed this Court that this trial was FINAL.
New York State Court has thirteen (13) judicial terms each calendar year. Each judicial term consists of four (4) calendar weeks.
Trial proceeded at 2:00pm before this Court on October 17, 2022 where both Plaintiff, through counsel Ammendolea, and Defendant, through counsel Bains, appeared virtually. Upon this Court's inquiry on Saad, Brains reported that Saad had been suspended from practicing law; that both Bains and Saad represented both defendants, rather than Saad for defendant Pakov and Bains for defendant Allicock as listed in court's case summary; neither Bains nor Saad was aware of each other's existence till the morning of the trial when Saad returned Bains' phone call; and that Bains obtained authority to resolve the matter. Plaintiff renewed its request for adjournment.
DISCUSSION
A. Legal Representation
Although court's case summary listed Saad representing defendant Pakov and Bains representing defendant Allicock, answers filed by Bains and Saad both stated that each of them, individually and respectively, represented both defendants in this matter. Neither Bains nor Saad was discharged as attorney of record and neither of them was aware of each other's existence till the morning of the trial. Here, Bains filed answer before Saad and no consent of change of attorney was filed with the court, as a result, Bains is the attorney of record de facto. Suspension from practicing law by the Second Department made Saad unavailable, qualifying Bains the only attorney of record as a matter of law. Rule 1.7(b) of the New York Rules of Professional Conduct provides that "notwithstanding the existence of a concurrent conflict of interest a lawyer may 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 Prof Conduct [22 NYCRR 1200.0] rules 1.7 [b]). Here, there is no evidence that conflict of interests has existed between the two defendants, nor any party has opposed either Bains or Saad representing both defendants. In addition, Bains is designated by his insurance company client to represent both defendants in this matter pursuant to Bains' testimony. Bains' representation of both defendants here is permissible. So was Saad. However, New York Consolidated Laws, Judiciary Law Section 486 prohibits a person who has been suspended, disbarred or convicted of a felony from practicing law under the penalty misdemeanor (see Judiciary Law § 486, Glickenhouse v Karp, 2008 NY Misc. Lexis 8753). Here, counsels reported that Saad was suspended from practicing law by the Second Department. Saad can not represent Defendant in the instant matter. That leaves Bains the only attorney of record on behalf of both defendants. Bains also testified that he obtained his insurance company client's instruction and authorization to resolve this matter on behalf of both defendants on the eve of the trial and that qualified him as the valid attorney of record in the instant matter.
B. Adjournment Request
During the trial, Plaintiff renewed his adjournment request to allow parties more time to negotiate so that Defendant may increase its offer in excess of insurance policy limit of $10,000. Defendant did not oppose Plaintiff's adjournment request, however, stated that (1) he preferred to resolve the matter; (2) that neither Saad nor him was able to reach the two individual defendants; (3) no response was received from either defendant despite that communication efforts had been made for years; (4) that "[he did] not think [he would] ever reach these two defendants"; and (5) that "nothing [was] forthcoming except the policy limit of $10,000." (Trial Tr at 18, lines 17-24.) "An application for an adjournment is addressed to the sound discretion of the hearing court, which must engage in a balanced consideration of all of the relevant factors" (T10 Funding v Baroda Props., Inc., 116 A.D.3d 694, also see Matter of Steven B., 6 N.Y.3d 888, 889, 850 N.E.2d 646, 817 N.Y.S.2d 599; Matter of Anthony M., 63 N.Y.2d 270, 283, 471 N.E.2d 447, 481 N.Y.S.2d 675; Matter of Tripp, 101 A.D.3d 1137, 1138, 957 N.Y.S.2d 389) and that "grant or denial of a motion for 'an adjournment for any purpose is a matter resting within the sound discretion of the trial court'" (Matter of Steven B., 6 N.Y.3d 888, 889, 850 N.E.2d 646, 817 N.Y.S.2d 599, citing Matter of Anthony M., 63 N.Y.2d 270, 283, 471 N.E.2d 447, 481 N.Y.S.2d 675). Here, this matter had been on the trial calendar for six (6) times since December 24, 2019 before this Court's trial date of October 17, 2022 and Supervising Judge Frias-Colon had designated the October 17, 2022 as FINAL on August 2, 2022. In addition, J. Frias-Colon, who presided over Part 15, had denied Plaintiff's adjournment request on October 14, 2022 before she assigned this matter to this Court on the same day of the trial. Taking into consideration of the totality, this Court instructed parties to proceed with the trial. Witnesses for Plaintiff were not present. During trial scheduled for October 17, 2022 at 2:00pm before this Court, parties settled the matter for the policy limit of $10,000.
For unknown reasons, court's UCMS system indicates that this matter was disposed on "October 14, 2022" by Judge "Frias-Colon, Patria" by the reason of "refer to judge."
CONCLUSIONS
Accordingly, it is
ORDERED that the trial part clerk is directed to mark this matter as SETTLED during scheduled trial on October 17, 2022 before this Court and dispose of the index number for all purposes.
This constitutes the decision and order of the Court.