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November 29, 2004

Westend MRI Med. Assoc., P.C. v Republic W. Ins. Co. (2004 NY Slip Op 51475(U))

https://www.beynensonlaw.com/case-law/westend-mri-med-assoc-p-c-v-republic-w-ins-co-2004-ny-slip-op-51475u/

Court
Civil Court of the City of New York, Kings County
Judge
Rubin, J.
Decided
November 29, 2004
Citation
2004 NY Slip Op 51475(U)
Posture
Other motion
Outcome
Provider prevailed
Issues
Other
Cite as
Westend MRI Med. Assoc., P.C. v Republic W. Ins. Co., 2004 NY Slip Op 51475(U) (Civ Ct, Kings County 2004)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to justify disqualifying the provider's law firm under the advocate-witness rule. The insurer alleged that the firm handled the provider's billing and verification functions and would need to testify about claim records and nonpayment. The Civil Court, Kings County, found no showing under DR 5-102 that trial counsel would be a necessary witness or that the testimony would be adverse. Following Talvy v American Red Cross in Greater New York, the court explained that another attorney could serve as advocate if a firm attorney testified. It denied the insurer's motion and granted the provider's cross motion for sanctions because identical unsuccessful disqualification motions made the practice redundant, abusive, and frivolous.

Reported in New York Official Reports at Westend MRI Med. Assoc., P.C. v Republic W. Ins. Co. (2004 NY Slip Op 51475(U))

[*1]
Westend MRI Med. Assoc., P.C. v Republic W. Ins. Co.
2004 NY Slip Op 51475(U)
Decided on November 29, 2004
Civil Court, Kings County
Rubin, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on November 29, 2004

Civil Court, Kings County



WESTEND MRI MEDICAL ASSOCIATES, P.C., as Assignee of MONICA AKITOYE, , Plaintiffs,

against

REPUBLIC WESTERN INSURANCE COMPANY, Defendant.

58916/04

Alice Fisher Rubin, J.

Plaintiff commenced this action against the defendant to recover first party no-fault benefits for medical services rendered, pursuant to CPLR 5102(a)(1) of the Insurance Law and Regulation of the New York State Insurance Department (11 NYCRR Sect. 65-1.1 et. seq.).

Defendant moves for an order granting disqualification of the plaintiff’s law firm, Israel, Israel & Purdy, LLP, and/or for a hearing relating to the law firm’s representation of the plaintiff.

Plaintiff cross-moves for an order denying defendant’s motion and awarding plaintiff attorneys’ fees and sanction for defendant’s filing of a frivolous motion.

Defendant moves for the disqualification of plaintiff’s attorneys on the grounds that the law firm has established a joint business venture with various no-fault medical providers, and in violation of the Code of Professional Responsibility, DR5-102, codifies as 22 NYCRR Section 102. Defendant alleges that the plaintiff’s law firm has taken over all billing functions for said medical providers, prepares correspondence, submits no-fault bills and responds to demands for verification on behalf of said medical providers. Defendant also argues that as a result of the law firm’s role in taking over all billing functions for the medical providers, the firm would be required to testify and substantiate that the law firm itself maintains the medical provider’s records; that the payment for such bills has been demanded by the law firm; that no further request for verification information has been received by the law firm; and that no denial or payment has been made within the statutory period.

The defendant further argues that it is impermissible for the law firm to become a witness and an advocate in the same proceeding. In support of its argument, defendant cites the Code of Professional Responsibility, DR 5-102, codified as 22 NYCRR Section 1200.2.

In opposition to defendant’s motion, plaintiff argues that there is no violation of the statute, court rule or decisional authority, but only a perceived violation of DR5-102. Plaintiff also argues that disqualification may be required only when it is likely that the testimony to be given by the witness is necessary, and that the testimony would harm the plaintiff. Plaintiff further argues that the defendant has failed to allege that the testimony of any lawyer in plaintiff’s attorneys’ law firm would be prejudicial to its client. Plaintiff’s attorney also states that trial counsel will not appear as a witness, and that if necessary there are other attorneys at the firm that can be called as a witness.

After careful review of the moving papers, cross-motion and supporting documents, the court finds that the defendant’s motion is without merit. There is no basis for disqualification of the plaintiff’s law firm. The defendant has not demonstrated a violation of the Code of Professional Responsibility DR5-102. There has been no showing that the trial attorney would be called as a necessary witness in this action, or that such testimony would be adverse. In any event, the law firm may still continue to represent its client when one of its attorneys may be called as a witness. See, Talvy v. American Red Cross in Greater New York, 205 AD2d 143, 618 N.Y.S.2d 25 [1st Dept., 1994]. If there are other attorneys that can act as advocates for the client, then disqualification of the law firm as a whole would not be warranted.

Next, as a result of having to defend the motions for disqualifications, plaintiff’s attorneys have moved for an order imposing sanctions against defendant’s attorneys in the amount of $500.00, as well as ordering the defendant to pay an appropriate sum to the Clients’ Security Fund, as punishment for the filing of a frivolous motion. The court takes judicial notice

of the fact that the defendant law firm has made identical motions in other counties, as well as this county, and has not prevailed on its arguments that the plaintiff’s law firm should be [*2]disqualified. In fact, there has been a recent ruling in this County, by the Hon. Manuel Mendez on the exact same issue in NYC Medical & Neurodiagnostic, P.C. v. Republic Western Ins. Co., N.Y.L.J., 11/26/04, p.22, c. 3. Judge Mendez found no basis to disqualify the plaintiff’s law firm.

The court finds that imposition of sanctions is warranted on the basis that the motions, are redundant, abusive and frivolous. The motions were made in other counties and the courts’ decisions were in favor of the plaintiff’s law firm, holding that disqualification of the law firm was not warranted under DR5-102.

Accordingly, defendant’s motion is hereby denied in its entirety, and plaintiff’s cross-motion is hereby granted. The defendant is hereby directed to pay $500.00 to plaintiff’s counsel, as sanctions to deter such frivolous motion practice in the future.

This constitutes the decision and order of this Court.

Court Attorney to notify.

Dated: November 29, 2004

Brooklyn, New York 11201

______________________________

ALICE FISHER RUBIN,

Judge of the Civil Court

Similar decisions

  • West Tremont Med. Diagnostics P.C. v Travelers Indem. Co. (2005 NY Slip Op 51909(U))The insurer's denial was fatally defective for omitting required claim information and was also untimely.
  • Montgomery Med., P.C. v State Farm Ins. Co. (2006 NY Slip Op 51003(U))The insurer's evidence raised a triable issue of fraudulent incorporation but did not establish its entitlement to summary judgment.
  • Multiquest PLLC v Allstate Ins. Co. (2005 NY Slip Op 52209(U))A billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than the provider or its employees.
  • Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51315(U))The insurer proved timely EUO notices and denial and the provider's nonappearance, rendering the request to disqualify counsel moot.
  • A. M. Med. Servs., P.C. v AIU Ins. Co. (2004 NY Slip Op 51084(U))The provider failed to establish its prima facie case because its officer's affidavit did not prove claim submission or overdue payment.
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