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.
