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

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 This opinion is uncorrected and will not be published in the printed Official Reports.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