Opinion
01 CV 5158 (SLT).
April 11, 2006
ORDER
By letter dated February 12, 2006, plaintiff Anthony Estes argues that, pursuant to New York Code of Professional Responsibility DR 7-104(a)(1), he should be permitted to contact health care professionals at Kings County Medical Center, a facility run by the Health and Hospitals Corporation ("HHC"). Plaintiff contends that HHC is a distinct entity from the City of New York (the "City"), that HHC is not a party to the instant action, and therefore that HHC cannot contribute to the potential liability of the City of New York. (Letter of Fred Lichtmacher, Esq., dated February 12, 2006 ("Pl's. Letter") at 2-3). Plaintiff explains that he has brought suit only against individual members of the New York Police Department ("NYPD") for false arrest, excessive force, and supervisory liability, and he has sued the City for battery and false imprisonment under the doctrine of respondeat superior. (Id.) Plaintiff argues, therefore, that, "[w]hile the NYPD is not a sueable entity, clearly, it is exclusively the members of that agency which [potentially] make NYC vicariously liable. . . ." (Id.)
By letter dated April 4, 2006, defendants object to plaintiff's argument that he should be allowed to interview HHC employees. The defendants assert first that the City and HHC are not distinct entities, since HHC was established by the City legislature and is charged with the operation of all City hospitals. (Letter of Sheryl Bruzzese, Esq., dated April 4, 2006 ("Defs.' Letter") at 3-4). Further, defendants argue that employees of HHC are parties to this litigation, because "[t]he treatment provided by these doctors as well as any communications obtained while treating plaintiff can certainly `bind' the City of New York at the time of trial." (Id. at 3). Finally, the City objects to interviews of those employees with whom defendants have already spoken and who may testify for the defense at trial, because "[i]n the course of anex parte interview, these witnesses may reveal communications . . . that defendants deem privileged." (Id.)
DISCUSSION
New York Code of Professional Responsibility DR 7-104(a)(1) provides:
During the course of the representation of a client a lawyer shall not . . . [c]ommunicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by a lawyer in that matter unless the lawyer has the prior consent of the lawyer representing such other party or is authorized by law to do so.
The Court of Appeals of New York has defined a "party" for purposes of DR 7-104(a)(1) "to include corporate employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation's `alter egos') or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel." Niesig v. Team I, 76 N.Y.2d 363, 374, 559 N.Y.S.2d 493, 498 (1990). The court emphasized, "All other employees may be interviewed informally."Id.
A. Distinct Entities
To determine whether HHC employees are "parties" to this litigation under DR 7-104(a)(1), the Court must first determine whether HHC is a distinct entity from defendant City of New York. As plaintiff's counsel indicates, HHC itself is not a defendant in this action. Further, the plaintiff has named the City as a defendant under the doctrine of respondeat superior only for the actions of the individual NYPD defendants, and not for the actions of any individual HHC employees.
Although defendants contend that the HHC is not a distinct legal entity from the City, this assertion has been rejected by numerous federal and state courts. See, e.g., Lennon v. New York City, 392 F. Supp. 2d 630, 639 (S.D.N.Y. 2005) (observing, "New York courts have expressly held that the City is a separate legal entity from HHC"); Brennan v. City, 59 N.Y.2d 791, 792, 464 N.Y.S.2d 731, 731 (1983) (holding that "for purposes other than representation and indemnification NYCHHC is not an agency of the city") (emphasis in original); Haynes v. Giuliani, 238 A.D.2d 257, 258, 657 N.Y.S.2d 18, 18 (1st Dep't 1997) (holding, "[t]he New York City Health and Hospitals Corporation is an entity separate and distinct from the City of New York . . .");Binyard v. City of New York, 151 A.D.2d 712, 712, 543 N.Y.S.2d 145, 145 (2d Dep't 1989) (same), appeal dismissed, 75 N.Y.2d 896, 554 N.Y.S.2d 830 (1990); Williams v. City of New York, 97 A.D.2d 372, 373, 468 N.Y.S.2d 1, 2 (1st Dep't 1983) (same).
Indeed, defendants cite only one opinion in support of their argument that HHC and the City are not distinct entities. See Pedrero v. Moreau, 179 A.D.2d 365, 578 N.Y.S.2d 905 (1st Dep't 1992). In Pedrero, plaintiffs brought a medical malpractice action against physicians employed by a City hospital. Plaintiffs' alleged injuries occurred between the date of the enactment of the act establishing HHC and the date, specified in a separate statutory section, setting a deadline by which the HHC was to enter into agreements with the City to govern its operations. See Pedrero v. Moreau, 179 A.D.2d at 366-67, 578 N.Y.S.2d at 906-07. At issue before the court was the status of the physicians as employees of either the City or of HHC at the time of the accident. See id., 179 A.D.2d at 366, 578 N.Y.S.2d at 906. If the physicians were employees of the City, plaintiffs, in order to maintain their action, would have been required to file a notice of claim against the City within ninety days of the accrual date of the cause of action. See id. (citing N.Y. Gen. Mun. Law §§ 50-d, 50-e). The Appellate Division held that the physicians were employees of HHC at the time of plaintiffs' alleged injuries and were not employees of the City, and therefore no notice of claim was required. See id., 179 A.D.2d at 368, 578 N.Y.S.2d at 908. On appeal, the Court of Appeals reversed, holding that because "it [was] undisputed that the City of New York maintained [the hospital] [at the time of plaintiff's injuries], and the physicians did not charge plaintiff's mother for their services, a timely notice of claim was required." Pedrero v. Moreau, 81 N.Y.2d 731, 733, 593 N.Y.S.2d 764, 765 (1992).
The significance of the Court of Appeals' decision in Pedrero v. Moreau, therefore, was merely that, at the time of plaintiff's injuries, the hospital was still maintained by the City and had not yet been transferred to HHC to an extent sufficient to extinguish the City's entitlement to a notice of claim. The court did not hold, as defendants argue, that the City and HHC are not distinct entities. In fact, this Court has found no support whatsoever for defendants' argument that the City and HHC are not separate and distinct entities, and notes its incredulity that defendants would make such an argument in the face of overwhelming case law to the contrary.
B. Employees' Ability to "Bind" the City
Since the HHC is a distinct entity from the City, HHC employees cannot be deemed to be "parties" to this action which has been brought solely against the City and individual members of the NYPD. As a consequence, the statements of HHC employees could not "`bind' the City of New York at the time of trial." (Defs.' Letter at 3). See Merrill v. City of New York, No. 04 CV 1371, 2005 WL 2923520, at *1 (S.D.N.Y. Nov. 4, 2005) (holding, "[a]s a police officer, [the witness] was not in a position to bind the City . . . in recounting what he had observed at a policed demonstration"); Nordhauser v. New York City Health Hosps. Corp., 176 A.D.2d 787, 791, 575 N.Y.S.2d 117, 120-21 (2d Dep't 1991) (noting that the admission of a triage nurse for the HHC could not be admitted at trial as evidence against HHC). "There is little doubt that a plaintiff is not ethically precluded from interviewing employees of an institutional defendant who are not in a position to bind the defendant by actions or admissions," Wright v. Stern, No. 01 CV 4437, 2003 WL 23095571, at *1 (S.D.N.Y. Dec. 30, 2003), and here, the employees at issue are employees of HHC, an entity distinct from the institutional defendant. The Court, therefore, finds no basis for defendants' argument that the statements of HHC employees in interviews with plaintiff's counsel could "bind" the City, so as to render the employees "parties" to this action.
C. Attorney-Client Privilege
Finally, defendants argue that in order to protect privileged communications, the Court should prohibit ex parte interviews with those employees with whom defendants have already spoken and who may testify for the defense at trial. (Defs.' Letter at 3). Not only has this Court determined that the individuals at issue here are not employees of a defendant in the case, but even if they were City employees, courts considering the purpose of DR 7-104(a)(1) have rejected the argument that there should be a blanket prohibition on employee interviews. See, e.g., Niesig v. Team I, 76 N.Y.2d at 372-74, 559 N.Y.S.2d at 497-98 (finding a prohibition againstex parte employee interviews unnecessary to protect the corporation's interests, including its interest in protecting privileged communications); see also Lizotte v. New York City Health Hosps. Corp., No. 85 CV 7548, 1990 WL 267421, at *4 (S.D.N.Y. Mar. 13, 1990) (permitting ex parte interviews of defendant HHC's emergency room employees, where there was no indication in the record that the employees would be in possession of any privileged information). Moreover, if, as this Court has determined, the HHC employees are not parties to this case and have not requested representation by the Corporation Counsel's Office, there would be no attorney-client privilege that would cover their communications with defendants' counsel.See Merrill v. City of New York, 2005 WL 2923520, at *2 (finding no attorney-client privilege established between a potential witness for the defendant and the City Law Department, where witness had not requested representation by the Law Department).
The Court notes that HHC employees are not by any means automatically represented by the Corporation Counsel of the City of New York. Even in an action in which HHC is itself a defendant, individual HHC employees are not represented by the Corporation Counsel unless they have made a request for representation by the Corporation Counsel. See Lizotte v. New York City Health Hosps. Corp., No. 85 CV 7548, 1990 WL 267421, at *5 n. 8 (S.D.N.Y. Mar. 13, 1990) (citing N.Y. Gen. Mun. Law § 50-k(2)).
CONCLUSION
Accordingly, this Court finds no basis for prohibiting the plaintiff from conducting ex parte interviews of HHC employees. To safeguard the interests of both parties, plaintiff's counsel shall inform all potential interviewees that they are entitled to have counsel present at the interview if they so desire, and that they may decline to speak with plaintiff's counsel altogether. Defendants' counsel shall likewise inform HHC employees that they are free to speak with plaintiff's counsel or to decline to do so. Defendants' counsel shall also inform HHC employees that should the employee choose to speak with plaintiff's counsel, even ex parte, the HHC will not retaliate against him or her in any way. (See Lizotte v. New York City Health Hosps. Corp., 1990 WL 267421, at *5 (setting forth ex parte interview procedures to sufficiently protect the interests of both parties).The Clerk is directed to mail copies of this Order to the parties.