The infant-plaintiff, ex parte, seeks court approval of a settlement pursuant to CPLR 1207 by submission of a proposed infant's compromise order filed March 30, 2012 with the Kings County Clerk's Office.

BACKGROUND

On January 28, 2010, plaintiffs commenced the action by filing a summons and complaint. Although there is no answer filed with the court, plaintiffs assert that issue has been joined. The action arises from personal injuries sustained in a motor vehicle accident.

On July 1, 2009 at 4:35 P.M. at or about Ocean Parkway and Brighton Beach Avenue the infant-plaintiff, Elijah Christie (hereinafter the infant-plaintiff or Elijah) was a passenger in a vehicle operated by his mother and owned by a non-party, Devera McGill. The papers state that Elijah was removed from the scene of the accident by ambulance to Lutheran Medical Center, having sustained abrasions and bleeding from his face and head caused by broken glass. Furthermore, it is alleged that CT scans of his head and lumbar spine were negative for fractures and that he was released from Lutheran Medical Center [*2]on July 3, 2009.

Plaintiff, Miranda L. Christie (hereinafter mother or Ms. Christie) admits that she was proceeding to make a left turn from Ocean Parkway to Brighton Beach Avenue. Defendant, Majestic Transportation Inc.'s (hereinafter Majestic or defendant) vehicle was proceeding on Ocean Parkway when the collision occurred. Defendant Aleksandir Kramer was the operator of a vehicle that was owned by Majestic.

The action was brought on behalf of Elijah by Ms. Christie, and by Ms. Christie individually for personal injuries she allegedly sustained. The parties have agreed to settle Elijah's claims for$10,000.00, on the condition that Ms. Christie discontinue her derivative causes of action for loss of services, and her claims for personal injuries. Ms. Christie and Elijah are both represented by Jack Baum, P.C., by Mr. Jack Baum, Esq., who filed the instant application.

PAPERS SUBMITTED

Plaintiffs have submitted a proposed infant's compromise order, an affidavit of Ms. Christie, an attorney affirmation from Mr. Baum, and a medical affidavit from Dr. Christina Guillen. Also included in the papers is a letter dated October 5, 2011, from New York City Human Resources Administration - Divisions of Liens and Recovery (hereinafter NYCDSC) stating that NYCDSC will not assert a lien against the proceeds of the plaintiff's personal-injury lawsuit/claim but reserves its right to pursue any separate recovery permissible by law. A letter dated August 30, 2011, from State Farm Insurance Company which seems to outline an offer and acceptance of $6,500.00 in settlement of Elijah's claims. Lastly is a letter dated September 7, 2011, from Hereford Insurance Company which states that it offered $3,500.00 as full and final settlement of Elijah's claims.

LAW AND APPLICATION

CPLR 1207 states:

Upon motion of a guardian of the property or guardian ad litem of an infant or, if there is no such guardian, then of a parent having legal custody of an infant, or if there is no such parent, by another person having legal custody, or if the infant is married, by an adult spouse residing with the infant, or of the committee of the property of a person judicially declared to be incompetent, or of the conservator of the property of a conservatee, the court may order settlement of any action commenced by or on behalf of the infant, incompetent or conservatee. If no action has been commenced, a special proceeding may be commenced upon petition of such a representative for settlement of any claim by the infant, incompetent or conservatee in any court where an action for the amount of the proposed settlement could have been commenced. Unless otherwise provided by rule of the chief administrator of the courts, if no motion term is being held and there is no justice of the supreme court available [*3]in a county where the action or an action on the claim is triable, such a motion may be made, or special proceeding may be commenced, in a county court and the county judge shall act with the same power as a justice of the supreme court even though the amount of the settlement may exceed the jurisdictional limits of the county court. Notice of the motion or petition shall be given as directed by the court. An order on such a motion shall have the effect of a judgment. Such order, or the judgment in a special proceeding, shall be entered without costs and shall approve the fee for the infant's, incompetent's or conservatee's attorney, if any.

"CPLR 1207 provides that where an action has been commenced on behalf of an infant or incapacitated person, a motion for approval of a settlement must be made in the action. If no action is pending, a special proceeding for such approval must be commenced. In both instances, the matter must be initiated by order to show cause. See CPLR 1207, fourth sentence" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1207) (internal citations omitted). As the instant application is not an order to show cause, it does not conform to CPLR 1207, and is therefore denied with leave to renew.

Regardless, the Court will address an apparent impropriety in this proceeding. The Court, pursuant to CPLR Article 12, has discretion concerning the involvement and representation of an infant during legal proceedings (Costello v St. Luke's Hosp. Ctr., 83 AD2d 503 [1st Dept 1981]). An infant is defined in CPLR 105 (j) as a person who has not attained the age of 18 years. Therefore, notwithstanding the fact that neither the parties nor their counsel raised any ethical concerns or conflict issues, the court may and does address them in this decision and order.

Public policy dictates that the attorney-client relationship should never be weakened due to its reliance on a high level of trust (Booth v Continental Ins. Co., 167 Misc 2d 429, 435 [Sup Ct, Westchester County 1995], citing Loew v Gillespie, 90 Misc 616, 619 [1915]). "[T]he power to compel attorneys to adhere to their professional obligations is of a continuous nature which may be exercised at any time when the occasion arises" (Booth v Continental Ins. Co., supra at 435, citing Leviten v Sandbank, 291 NY 352, 357 [1943] [internal quotation marks omitted]). The judiciary has the ability to question any "impropriety [which] appears on the record and the issue may be raised sua sponte" (Booth v Continental Ins. Co., supra at 435, citing Porter v Huber, 68 F Supp 132 [WD Wash 1946]; see Erie County Water Auth. v Western NY Water Co., 304 NY 342, 351, 353 [1952]).

Justice Lazer outlined when the court could raise a conflict of interest sua sponte, when he stated: [*4]

Since what is involved is a matter of public interest relating to the integrity of the Bar, the courts, as well as the Bar, have a responsibility to maintain public confidence in the legal profession. The exercise of such responsibility cannot be deemed dependant upon the disposition of the parties or their attorneys to press an issue of impropriety by formal motion when the court itself has become aware of its existence (Island Pa-Vin Corp. v Klinger, 76 Misc 2d 180, 186 [Sup Ct, Suffolk County 1973]) (citations omitted)).

Therefore, in the instant matter the Court finds it appropriate to address the apparent conflict of interest.

In determining whether there is a potential conflict of interest it is appropriate to review the applicable law. Vehicle and Traffic Law § 1141 provides that when a vehicle is turning left "the driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A violation of Vehicle and Traffic Law § 1141 constitutes negligence per se (see Ciatto v Lieberman, 266 AD2d 494 [2nd Dept 1999]). As Ms. Christie admits to making a left turn there is a possibility that she violated Vehicle and Traffic Law § 1141 and contributed to the accident.

As to the owner, Devera McGill's potential liability, Vehicle and Traffic Law § 388 (1) provides in pertinent part:

Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner.

The Rules of Professional Conduct Rule 1.7 provides in pertinent part:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if a reasonable lawyer would conclude that either: (1) the representation will involve the lawyer in representing differing interests; or (2) there is a significant risk that the lawyer's professional judgment on behalf of a client will be adversely affected by the lawyer's own financial, business, property or other personal interests. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing. [*5]

[A] lawyer may represent multiple clients if a disinterested lawyer would believe that the lawyer can competently represent the interest of each and if each consents to the representation after full disclosure of the implications of the simultaneous representation and the advantages and risks involved" (see, Matter of T'Challa D., 196 Misc 2d 636, 642 [Fam Ct, Kings County 2003]).

Thus, counsel considering representation of multiple clients must first determine whether a disinterested lawyer could competently represent the respective interest of all potential clients. If the answer is yes, then after full disclosure of the implications of simultaneous representations, the parties may give consent to the joint representation and waive the potential conflict of interest. If the answer is no, then the conflict may not be waived and joint representation would be unethical.

Applying that analysis here, the court finds that the law firm of Jack Baum, P.C. agreed to represent the infant-plaintiff and the mother while it should have known that Ms. Christie could be potentially sued by Elijah for causing his injuries pursuant to Vehicle and Traffic Law § 1141. It was also aware that the non-party Devera McGill, could also be potentially liable for Elijah's injuries pursuant to Vehicle and Traffic Law § 388.

The inherent ethical conflict of joint representation that exists between a driver and injured passenger has been discussed in numerous cases (see, Quinn v Walsh, 18 AD3d 638 [2nd Dept 2005]; Pessoni v Rabkin, 220 AD2d 732 [2nd Dept 1995]; Shaikh v Waiters, 185 Misc 2d 52 [Sup Ct, Nassau County 2000]; Ganiev v Nazi, 189 Misc 2d 83 [App Term, 2nd Dept 2001]). Furthermore, "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" (Sidor v Zuhoski, 261 AD2d 529 [2nd Dept 1999] (internal citations omitted).

It is well within the discretionary opinion of the court to disqualify an attorney (Boyd v Trent, 287 AD2d 475, 476 [2d Dept 2001], citing Mondello v Mondello, 118 AD2d 549 [1986]). "The purpose of the Code of Professional Responsibility in situations involving adverse interest representation is to protect clients, ignorant and sophisticated, maintain the integrity of the legal system and prevent even honest attorneys from serving mutually antagonistic interests" (Booth v Continental Ins. Co., supra at 435-436).

Any evidence of Ms. Christie being comparatively negligent would result in Ms. Christie being liable in her individual capacity (Alcantara v Mendez, supra). Clearly, the interests of Ms. Christie and Elijah conflict and therefore, Jack Baum, P.C.'s continued joint representation of the plaintiffs results in a violation of the ethical rule requiring an attorney to represent a client zealously (see Alcantara v Mendez, 303 AD2d, supra at 338). For the foregoing reasons, Jack Baum P.C. is disqualified from continuing to represent Elijah in this action.

However, Jack Baum P.C. may continue representation of Ms. Christie as such representation will not impair the ethical obligations to preserve client confidentiality because the attorney represented one individual, in two capacities, as opposed to two separate individuals or entities (Boyd v Trent, 287 AD2d 475 [2d 2002]). [*6]

The Court will now address Ms. Christie's ability to serve as guardian of her son in prosecuting the instant complaint. For the reasons previously set forth, there is a clear pecuniary conflict between Ms. Christie and her son. Pursuant to CPLR 1201, both parents presumably have legal custody of their child, so either parent could appear on the infant's behalf. However, the conflict of interest between Ms. Christie as the operator of the vehicle, and the infant, Elijah, as an injured plaintiff/passenger in the vehicle is adverse. The conflict is also unwaivable as Elijah as an infant, is "presumed to lack the ability to knowingly [consent]" (see Sidor v Zuhoski, 261 AD2d 529 [2nd Dept 1999] citing Matter of H. Children, 160 Misc 2d 298, 301 (Family Ct., Kings County, 1994); Domestic Relations Law § 2; CPLR 105[j] ).

Therefore, the Court, pursuant to CPLR 1202, orders the removal of Ms. Christie as guardian of Elijah in this matter (see Matter of Riddell, 78 Misc 2d 150 [Sup Ct, NY County 1973]).

The plaintiff is directed to move for the Court to appoint a guardian for Elijah within 45 days of the date of this Order. The matter is stayed pending the appointment of a guardian for Elijah Christie.

This constitutes the decision and order of the court.

Enter:

J.S.C.

Enter Forthwith:____________________________

J.S.C.