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

Civil Court, Kings County

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