The Appellate Division, First Department, on Dec. 27 censured Nativ Winiarsky, a partner at Kucker & Bruh, for questioning potential witnesses under oath in his office without notifying opposing counsel, rejecting his argument that the questioning was different from a formal deposition. The decision reversed a finding by a hearing panel of the Departmental Disciplinary Committee, which had accepted Winiarsky's argument.
The underlying case involved the roommate of a deceased tenant who claimed to be the tenant's domestic partner and sought succession rights. Winiarsky, who represented the landlord, issued subpoenas to the tenant's adult children and filed a motion in court seeking discovery. The children asked to come to Winiarsky's office to avoid mandatory court appearances. Winiarsky withdrew his motion for discovery, but did not tell opposing counsel he was examining the witnesses under oath in his office. The roommate's lawyer eventually learned of the questioning and moved for sanctions. The court suppressed the testimony and awarded attorney fees.
The disciplinary committee filed charges alleging that Winiarsky had violated CPLR 408 by essentially deposing witnesses without telling opposing counsel. A referee upheld the charges, but a hearing panel reversed, ruling that Winiarsky's questioning in his office was not the same as a formal deposition. The First Department reversed, finding that the hearing panel's reasoning was flawed and the questioning "had all the indicia of a deposition." It rejected Winiarsky's argument that the witnesses were free to leave at any time, saying the witnesses, as unrepresented lay people, probably did not know that.
Both the hearing panel and the First Department agreed that Winiarsky should be censured for a separate, unrelated charge arising from an ex parte email about a job opening at his firm that he sent to a court attorney acting as a special referee in a case Winiarsky was working on. The First Department panel consisted of Justices Peter Tom (See Profile), Angela Mazzarelli (See Profile), David Saxe (See Profile), James Catterson (See Profile) and Leland DeGrasse (See Profile) in Matter of Winiarsky, M-3232 and M-4033.