Dahianni Cabrera, Plaintiff, v. BRONX SC LLC SURGICORE SURGICAL CENTERS JOHN CONLU SHIRLEY INFANTE (2026)

In accordance with CPLR 2219(a), the decision herein is made upon consideration of all the papers filed by the parties in NYSCEF in connection with the motion, brought by Order to Show Cause, by defendants EMPIRE STATE AMBULATORY SURGERY CENTER D/B/A BRONX SC LLC., SURGICORE SURGICAL CENTERS, JOHN CONLU, and SHIRLEY INFANTE (Motion #2), seeking an order removing Cheri A. Chestnut, Esq., ("Plaintiff's Pro Hac Vice Attorney") as pro hac vice counsel for plaintiff DAHIANNI CABRERA in this matter for falsely representing her good standing to practice law within the State of New York; referring Plaintiff's Pro Hac Vice Attorney to the Attorney Grievance Committee of the First Judicial Department for knowingly filing a false affidavit with the Court in an attempt to circumvent a suspension from the First Judicial Department and thus participating in the unauthorized practice of law in the State of New York; and removing Goddard Law PLLC as counsel for plaintiff for affirming the motion to grant Plaintiff's Pro Hac Vice Attorney pro hac vice admission without performing due diligence as to the status of counsel's disciplinary actions in New York and New Jersey and falsely swearing that counsel was an attorney in good standing and who has never been disciplined despite her being in active suspension at the time that the request to admit was made and such relief as the Court deems just and reasonable under these circumstances.

Background/Facts

The instant motion presents a peculiar set of facts. Plaintiff's counsel, Cheri A. Chestnut, Esq., an attorney admitted to practice law in the state of Louisiana, was admitted pro hoc vice to represent plaintiff in this case, in association with Megan S. Goddard, Esq., a New York attorney. Chestnut was admitted to practice law in the State of New York in 2002. However, seven years later, Chestnut permanently relocated to Louisiana in 2009 and was admitted to practice law in that state in 2010.

Twelve years later, in November 2022, Chestnut was suspended from the practice of law in New York State for failing to comply with New York State's biennial attorney registration requirement and for failing to pay the registration fee.

In March of 2025, Goddard filed a motion (Motion #1) seeking to have Chestnut admitted pro hoc vice to represent plaintiff in this case. In support of the motion, Chestnut submitted an affidavit in which she stated that she was admitted to practice in the State of Louisiana and that she had never been disciplined by any court and that she was not the subject of any pending disciplinary proceedings. The motion was unopposed.

By decision and order dated June 5, 2025, this Court granted plaintiff's pro hoc vice motion without opposition.

Seven days later, on June 12, 2025, the Appellate Division reinstated Chestnut to the practice of law in New York State.

Approximately a week later, on June 20, 2025, Chestnut conducted the deposition of defendant Shirley Infante. The deposition was allegedly contentious.

After the deposition, defense counsel alleged that Chestnut had been suspended from the practice of law. On June 24, 2025, defense counsel filed the instant motion (Motion #2) seeking inter alia to disqualify plaintiff's attorneys. Defense counsel also refused to participate in discovery until the motion was resolved.

That same day, Chestnut filed a corrected affidavit reflecting the fact that Chestnut had been suspended from the practice of law in New York, but had been restored to good standing and that Chestnut's license to practice law in New Jersey had been revoked for failing to pay the required registration fee. Chestnut stated that she was under the mistaken belief that her New York and New Jersey law licenses were previously marked "inactive".

Analysis

On a motion to disqualify an opponent's attorney, the burden is on the party seeking disqualification to show that it is warranted (Dietrich v Dietrich, 136 AD3d 461, 462 [1st Dept 2016]). The burden is a heavy one, a party has the right to be represented by counsel of its choice and any restrictions on that right must be carefully scrutinized (Mayers v Stone Castle Partners, LLC, 126 AD3d 1, 5-6 [1st Dept 2015]). "Furthermore, where the rules relating to professional conduct are invoked not at a disciplinary proceeding but in the context of an ongoing lawsuit, disqualification ... can [create a] strategic advantage of one party over another" (Ullmann-Schneider v Lacher & Lovell-Taylor PC, 110 AD3d 469, 470 [1st Dept 2013]).

Under the circumstances, the Court must be diligent in ensuring that a motion to disqualify is not in truth a misuse of judicial authority and resources to obtain a litigation advantage. "Courts should also examine whether a motion to disqualify, made during ongoing litigation, is made for tactical purposes, such as to delay litigation and deprive an opponent of quality representation" (id.). The decision whether to grant a motion to disqualify an attorney rests in the discretion of the motion court (Skanska USA Bldg. Inc. v Atlantic Yards B2 Owner, LLC, 146 AD3d 1, 13 [1st Dept 2016]).

In the instant case, the record before the Court does not support the disqualification of plaintiff's counsel and the motion is denied. Defense counsel did not establish that Chestnut engaged in the unauthorized practice of law while suspended from practicing law in New York State or any other ethical violation warranting disqualification. The email correspondence which defense counsel submitted in connection with the motion indicates that Chestnut sent emails to schedule a deposition(s) while suspended and prior to being admitted pro hoc vice. Scheduling depositions of course, does not constitute the practice of law and is routinely carried out by paralegals, secretaries and office managers. Of note, Chestnut had been admitted pro hoc vice and reinstated to practice law in the State of New York by the time she took the deposition of defendant Shirley Infante.

Moreover, consistent with her duty of candor to this Court, Chestnut filed a corrected affidavit advising the Court of her suspensions. Hence, while the record reflects that while seeking pro hoc vice admission Chestnut made an erroneous representation with respect to her New York State attorney registration status, the error was promptly remedied.

In addition, there is no evidence that defendants were in any way prejudiced by Chestnut's representation of plaintiff. "Absent actual prejudice or a substantial risk thereof, the appearance of impropriety alone is not sufficient to require disqualification of an attorney" (Matter of Nenninger v Kelly, 140 AD3d 961, 963 [2d Dept 2016]). Under the circumstances, the Court is also inclined to credit Chestnut's statement that she made a good faith error concerning her registration status.

Furthermore, at oral argument on this motion, the Court instructed the parties to submit supplemental legal authority to support their respective positions as to the proper remedy in this situation. The Court reminded defense counsel of the seriousness of the accusations being made by him against a fellow attorney. The Court also emphasized that it was defense counsel's responsibility to provide the Court with evidence and law to support the defendants' contentions, especially the defense counsel's consequential proclamation that the failure to renew an attorney registration and to pay the corresponding fee warrants referral to the Attorney Grievance Committee. The Court adjourned the motion to allow the parties the time to submit the supplemental legal authority and directed that discovery in the action resume.

Despite the grant of additional time to conduct legal research, defense counsel was unable to locate a single case, reported or unreported, to support the contention that disqualification or reporting Chestnut to the Attorney Grievance Committee is a proper remedy in this situation. On the other hand, plaintiff's counsel's post-argument submission identified numerous recent cases where attorneys who had been suspended from the practice of law for failing to comply with the biennial registration requirement were reinstated after curing their registration delinquency and paying the requisite fee (Matter of Attorneys in Violation of Judiciary Law § 468-a (Gordon), 212 AD3d 980 [3d Dept 2023]; Matter of Attorneys in Violation of Judiciary Law § 468-a (Devlin), 215 AD3d 1222 [3d Dept 2023]; Matter of Attorneys in Violation of Judiciary Law § 468-a (Dorotan), 211 AD3d 1159 [3d Dept 2022]; Matter of Attorneys in Violation of Judiciary Law § 468-a (Wayland), 195 AD3d 1144 [3d Dept 2021]; Matter of Attorneys in Violation of Judiciary Law § 468-a (Lawrence), 193 AD3d 1318 [3d Dept 2021]; Matter of Attorneys in Violation of Judiciary Law § 468-a (Bonar), 280 AD3d 775 [3d Dept 2001]). Accordingly, the motion is properly denied.

The Court also is cognizant of its obligation to subject disqualification motions to heightened scrutiny and to examine whether such motions are merely a tactical strategy (Mayers v Stone Castle Partners, supra; Ullmann-Schneider v Lacher & Lovell-Taylor PC, supra). Here, the record reflects that defendants have wrongfully unilaterally refused to partake in discovery during the pendency of this motion to disqualify and moved for relief without legal support justifying the demand. As such, defendants' conduct raises concerns on the part of this Court that the instant motion is merely an attempt to delay and to drag out this nearly five-year-old litigation, and the motion is denied for said reason as well.

Of import, this action is already nearly five years old and the time for the completion of discovery has long since passed. Under the circumstances, the Court directs the parties to work together and communicate directly to complete discovery in an expeditious matter.

The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any contention raised by the parties was not addressed by the Court, it is hereby denied.

Accordingly, it is hereby

ORDERED that the motion of EMPIRE STATE AMBULATORY SURGERY CENTER D/B/A BRONX SC LLC., SURGICORE SURGICAL CENTERS, JOHN CONLU and SHIRLEY INFANTE (Motion #2), seeking an order removing Cheri A. Chestnut, Esq., ("Plaintiff's Pro Hac Vice Attorney") as pro hac vice counsel for plaintiff DAHIANNI CABRERA in this matter for falsely representing her good standing to practice law within the State of New York; referring Plaintiff's Pro Hac Vice Attorney to the Attorney Grievance Committee of the First Judicial Department for knowingly filing a false affidavit with the Court in an attempt to circumvent a suspension from the First Judicial Department and thus participating in the unauthorized practice of law in the State of New York; and removing Goddard Law PLLC as counsel for plaintiff for affirming the motion to grant Plaintiff's Pro Hac Vice Attorney pro hac vice admission without performing due diligence as to the status of counsel's disciplinary actions in New York and New Jersey and falsely swearing that counsel was an attorney in good standing and who has never been disciplined despite her being in active suspension at the time that the request to admit was made and such relief as the Court deems just and reasonable under these circumstances is DENIED in its entirety; and it is further

ORDERED that discovery in this five-year-old case shall proceed immediately; and it is further

ORDERED that the Clerk shall mark Motion #2 as decided in all Court records.

The foregoing constitutes the Decision and Order of the Court.

Dated: June 11, 2026

Bronx, New York

Hon. Veronica G. Hummel, A.S.C.J.

Veronica G. Hummel, J.