July 29, 2009

Astoria Advanced Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51729(U))

Headnote

The relevant facts considered by the court in this case were that the plaintiff, a medical provider, was seeking to recover assigned first-party no-fault benefits from the defendant insurance company. The defendant sought to disqualify Gary Tsirelman, Esq., and Gary Tsirelman, P.C. from representing the plaintiff in the case, as Tsirelman was both counsel to and sole owner of the plaintiff medical provider. The main issue decided by the court was whether Tsirelman should be allowed to act as both attorney and witness in the case, and the court held that in a disqualification situation, any doubt should be resolved in favor of disqualification. The court affirmed the order without costs, concluding that the defendant had raised an issue of fact as to whether the plaintiff was eligible to receive reimbursement of first-party no-fault benefits, and that Tsirelman would likely be called as a witness, potentially impacting the credibility of the case. Therefore, the court held that Tsirelman and his law firm were disqualified from representing the plaintiff in the action.

Reported in New York Official Reports at Astoria Advanced Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51729(U))

Astoria Advanced Med., P.C. v Allstate Ins. Co. (2009 NY Slip Op 51729(U)) [*1]

Astoria Advanced Med., P.C. v Allstate Ins. Co.

2009 NY Slip Op 51729(U) [24 Misc 3d 142(A)]

Decided on July 29, 2009

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-413 K C.

Astoria Advanced Medical, P.C. a/a/o BORIS SKOBELSKY, Appellant,
against
Allstate Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered July 20, 2007. The order granted so much of defendant’s motion as sought to disqualify Gary Tsirelman, Esq., and Gary Tsirelman, P.C. from representing plaintiff in this action.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted so much of a motion by defendant as sought to disqualify Gary Tsirelman, Esq., and Gary Tsirelman, P.C. from representing plaintiff in this action.

“Whether counsel should be allowed to act as both attorney and witness is a matter addressed to the sound discretion of the court. . . In a disqualification situation any doubt is to be resolved in favor of disqualification” (Solomon v New York Prop. Ins. Underwriting Assn., 118 AD2d 695, 695-696 [1986] [citations omitted]). In the instant case, Gary Tsirelman is both counsel to and sole owner of plaintiff medical provider, and defendant has raised an issue of fact as to whether plaintiff is eligible to receive reimbursement of first-party no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]). In light of defendant’s showing that Tsirelman will almost certainly be called as a witness, and that the ultimate determination may well hinge in part on his credibility, the Civil Court properly disqualified Gary Tsirelman, Esq., and Gary Tsirelman, P.C. from representing plaintiff in this action (see Code of Professional Responsibility DR 5-102 [22 NYCRR 1200.21], now Rules of Professional Conduct rule 3.7 [22 NYCRR 1200.29]; Luk Lamellen u. Kupplungsbau GmbH v Lerner, 167 AD2d 451, 452 [1990]; Solomon, 118 AD2d 695). [*2]

Pesce, P.J., Weston and Steinhardt, JJ., concur.
Decision Date: July 29, 2009