You are here: / / ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL...
, , ,

ALTHOUGH THE ATTORNEY REPRESENTING HIS MOTHER’S ESTATE IN A MEDICAL MALPRACTICE/WRONGFUL DEATH ACTION MAY BE A WITNESS, UNDER THE PARTICULAR FACTS OF THE CASE, DISQUALIFICATION PURSUANT TO THE ADVOCATE-WITNESS RULE WAS NOT REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that, although the attorney representing his mother’s estate in the medical malpractice/wrongful death action may be a witness, the advocate-witness rule, under the particular facts of this case, did not require disqualification:

… [T]he advocate-witness rules contained in the Rules of Professional Conduct (22 NYCRR 1200.0) provide guidance, but are not binding authority, for the courts in determining whether a party’s attorney should be disqualified during litigation  … . Rule 3.7(a) of the Rules of Professional Conduct … provides that, in general, “[a] lawyer shall not act as advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact.” There is an exception to this rule when “disqualification of the lawyer would work substantial hardship on the client”… . Further, the advocate-witness rule generally does not control where the attorney is also a litigant … . However, estate representatives represent the interests of the estate’s beneficiaries, rather than their own. Therefore, generally, the advocate-witness rule will prevail over a fiduciary-attorney’s right to self-representation … . …

Here, the other distributee affirmed that his interests in the lawsuit are identical to those of the plaintiff, whom he wished would remain as attorney for the estate. Accordingly, while the plaintiff is not a party in his individual capacity, his personal property interests as one of two distributees of the estate are at stake (see EPTL 5-4.4[a] …), and his interests appear to be identical to those of the estate … . Furthermore, the plaintiff affirmed that his attempt to retain different counsel for the estate was unsuccessful, such that his disqualification as counsel would essentially foreclose the claim, working substantial hardship on the estate and its distributees … . Greenberg v Grace Plaza Nursing & Rehabilitation Ctr., 2019 NY Slip Op 05390, Second Dept 7-3-19

 

You might also like
PLAINTIFF, WHO WAS SWEEPING THE FLOOR WHEN HE WAS STRUCK BY BY A PIECE OF A SKIDLOADER USED TO HOIST A MOTOR, WAS NOT ENGAGED IN AN ACTIVITY COVERED BY LABOR LAW 240 (1), 241 (6) OR COMMON LAW NEGLIGENCE (SECOND DEPT).
THE PERSON WHO ASSAULTED PLAINTIFF WAS THE OWNER OF THE LAW FIRM PLAINTIFF WORKED FOR; PLAINTIFF COULD RECOVER WORKERS’ COMPENSATION BENEFITS FROM THE LAW FIRM AND DAMAGES FOR ASSAULT AND BATTERY FROM THE OWNER, WHO WAS A COEMPLOYEE (SECOND DEPT).
DEFENDANT’S BARE DENIAL OF THE RECEIPT OF NOTICE OF THE FORECLOSURE ACTION WAS NOT A SUFFICIENT BASIS FOR GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).
REQUIREMENTS FOR SERVICE ON AN UNAUTHORIZED FOREIGN LIMITED LIABILITY COMPANY NOT MET, DEFAULT JUDGMENT PROPERLY DENIED (SECOND DEPT).
THE MOTION FOR SUMMARY JUDGMENT WAS PREMATURE (MADE BEFORE ISSUE WAS JOINED) AND SHOULD NOT HAVE BEEN GRANTED; ALTHOUGH NOT PRESERVED THE ISSUE COULD BE HEARD ON APPEAL BECAUSE IT PRESENTED A QUESTION OF LAW THAT COULD NOT HAVE BEEN AVOIDED IF RAISED (SECOND DEPT).
PLAINTIFF’S EXPERT RAISED ISSUES OF FACT ABOUT WHETHER EXPOSURE TO ASBESTOS CAUSED THE INJURY TO PLAINTIFF; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DEFENDANT CLAIMED HE TOOK POSSESSION OF THE VICTIM’S GUN AND FIRED AFTER THE VICTIM FIRED AT HIM; DEFENDANT WAS ACQUITTED OF ATTEMPTED MURDER, ATTEMPTED ASSAULT AND ASSAULT BUT CONVICTED OF CRIMINAL POSSESSION OF A WEAPON; THE JURY SHOULD HAVE BEEN INSTRUCTED ON “TEMPORARY LAWFUL POSSESSION OF A WEAPON;” NEW TRIAL ORDERED (SECOND DEPT).
ARCHITECTURAL PLANS BRIEFLY LEFT WITH THE TOWN PLANNER AND DISPLAYED AND DISCUSSED AT A MEETING OF THE PLANNING BOARD WERE RECORDS WITHIN THE MEANING OF THE PUBLIC OFFICERS LAW, PETITION SEEKING THE DOCUMENTS SHOULD NOT HAVE BEEN DISMISSED AND SANCTIONS FOR BRINGING THE PETITION SHOULD NOT HAVE BEEN IMPOSED.

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

SUPREME COURT SHOULD NOT HAVE GRANTED SUMMARY JUDGMENT FINDING THAT THE VALUE... DEFENDANT WAS ENTITLED TO FURTHER INQUIRY TO DETERMINE WHETHER SHE VIOLATED...