Summary
In Sidor v Zuhoski (261 AD2d 529 [2d Dept 1999]), an attorney attempted to represent both the estate of a mother driver and an infant passenger as simultaneous plaintiffs.
Summary of this case from Shaikh v. WaitersOpinion
May 17, 1999
Appeal from the Supreme Court, Suffolk County (Berler, J.).
Ordered that on the Court's own motion, the notices of appeal and cross appeal from so much of the order as directed a hearing is deemed to be an application for leave to appeal and cross-appeal, and leave to appeal and cross-appeal is granted ( see, CPLR 5701 [c]); and it is further,
Ordered that the order is modified by deleting therefrom the provision which, upon reargument, granted the motion for summary judgment dismissing the complaint in Action No. 1 to the extent of directing a hearing and substituting therefor a provision which adheres to the original determination in the order dated September 30, 1997, denying the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by Joseph Zuhoski, Gregory Zuhoski, and Colin Van Tuyl to Christopher Sidor and Martin Sidor Sons, Inc.
Under New York law, because a child may properly bring an action against his or her parents, it is improper for an attorney to represent both the parents and the child in an automobile accident action brought against the owner and driver of the other vehicle ( see, N.Y. State Bar Assn Ethics Report 69-112; see also, Pessoni v. Rabkin, 220 A.D.2d 732). Further, "an attorney who undertakes the joint representation of two parties in a lawsuit [should] not continue as counsel for either one after an actual conflict of interest has arisen" ( Matter of H. Children, 160 Misc.2d 298, 800) because continued representation of either or both parties would result in a violation of the ethical rule requiring an attorney to preserve a client's confidences or the rule requiring an attorney to represent a client zealously ( see, Matter of H. Children, supra). Because Michael T. Clifford Associates once represented both Colin Van Tuyl as Executor of the Estate of Janet A. Van Tuyl (hereinafter the Estate) and Brianna Van Tuyl, the infant daughter of Janet A. Van Tuyl and Colin Van Tuyl and the passenger in Janet A. Van Tuyl's automobile at the time of the accident, the court did not improvidently exercise its discretion by removing Michael T. Clifford Associates from continuing to represent Colin Van Tuyl as Executor of the Estate of Janet A. Van Tuyl ( see, Matter of H. Children, supra).
However, the court improperly directed a hearing on the issue of whether Christopher Sidor and/or Gregory Zuhoski were acting within the scope of their employment at the time of the accident ( see, CPLR 3211 [a], [b]; 3212 [c]).
The remaining contention of the appellant Christopher Sidor is without merit.
Mangano, P. J., Santucci, Thompson and McGinity, JJ., concur.