PATTERSON v. BETH ABRAHAM NURSING HOME (2022)

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered July 15, 2021, which denied defendant's motion to disqualify plaintiff's counsel, unanimously affirmed, with costs.

Plaintiff's father (the decedent) commenced this negligence action against defendant in 2016, seeking to recover damages for personal injuries he allegedly sustained while he was living at defendant's nursing facility.  Roger M. Newyear, Esq., plaintiff's brother and the decedent's son, represented the decedent in the litigation, and was also his health care proxy.  When the decedent died in 2019, Newyear continued as counsel, representing plaintiff, the administratrix of the decedent's estate.  Defendant now seeks to disqualify Newyear, asserting that rules 3.7(a) and 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) prevent him from acting as counsel.

Defendant did not sustain its burden of demonstrating that rule 3.7(a) of the Rules of Professional Conduct (22 NYCRR 1200.0) required Newyear's disqualification as counsel to plaintiff (see Dishi v. Federal Ins. Co., 112 A.D.3d 484, 484, 976 N.Y.S.2d 379 [1st Dept. 2013];  Horns, Inc. v. Geller Marzano & Co. CPA's, P.C., 40 A.D.3d 503, 503, 834 N.Y.S.2d 858 [1st Dept. 2007]).  Plaintiff represents that she is not likely to call Newyear as a witness on her behalf on any significant issue in the case, as he does not have any relevant, material knowledge or information regarding the allegations of the complaint (see S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 N.Y.2d 437, 443–444, 515 N.Y.S.2d 735, 508 N.E.2d 647 [1987]).  Moreover, Newyear's testimony is not necessary, as many of the relevant facts concerning the decedent's care and treatment at defendant's facility are contained in the medical records prepared by defendant's staff, and they are able to testify to the relevant events surrounding the decedent's alleged injuries (see Dishi, 112 A.D.3d at 484, 976 N.Y.S.2d 379;  Sokolow, Dunaud, Mercadier & Carreras v. Lacher, 299 A.D.2d 64, 74–75, 747 N.Y.S.2d 441 [1st Dept. 2002]).

Likewise, defendant failed to show that Newyear violated rule 4.2(a) of the Rules of Professional Conduct (22 NYCRR 1200.0), as his communications with defendants’ staff had nothing to do with this action.  The notes in the medical records contain no reference to the incidents underlying the action;  rather, they relate exclusively to the staff's discussions with Newyear, who was the decedent's health care proxy, about the decedent's medical condition and the care necessary to address that condition.

We have considered defendant's remaining contentions and find them unavailing.