NYC Med. & Neurodiagnostic, P.C. v. Republic W. Ins. Co., 2004 NY Slip Op 24452 (NY 2/9/2005)
| Decision Date | 09 February 2005 |
| Citation | 2004 NY Slip Op 24452 |
| Parties | NYC MEDICAL & NEURODIAGNOSTIC, P.C., as Assignee of LAURA VEGA and Another, Plaintiff, v. REPUBLIC WESTERN INS. CO., Doing Business as CARDINAL CLAIMS SERVICES, Defendant. |
| Court | New York Court of Appeals Court of Appeals |
Meiselman, Denlea, Carton & Eberz, P.C. (Steven L. Barry of counsel), for defendant.
Baker, Barshay & Neuwirth, LLP (Gil McLean of counsel), for plaintiff.
Defendant moves for an order disqualifying the firm of Baker, Barshay & Neuwirth, LLP from continuing to represent the plaintiff in this action. Defendant alleges that the firm is in violation of Code of Professional Responsibility DR 5-102 (22 NYCRR 1200.21) and must be disqualified from representing the plaintiff because one of its members ought to be called as a witness in the proceeding.
Plaintiff, a medical services provider, provides medical services to individuals and bills the insurance carriers under the state No-Fault Law. Following rendition of the services, plaintiff prepares and generates a bill which is subsequently mailed by the firm to the defendant insurer. The bills are mailed by a "mailroom employee" and are accompanied by a letter, on the firm's letterhead which states the following:
The letter is unsigned.
Defendant maintains that the firm engages in the crucial activities of preparing the mailing, effectuating the mailing, maintaining records of the mailing, maintaining records and requests for verification and all other essential facets of "processing" the claim. The only witnesses who can offer testimony sufficient to establish a prima facie case in this matter are from the firm.
The firm counters that the fact that a nonattorney member may be called to testify on plaintiff's behalf is not a violation of the disciplinary rules disqualifying it from representing plaintiff.
DR 5-102, codified as 22 NYCRR 1200.21, reads as follows:
The advocate-witness disqualification rules contained in the Code of Professional Responsibility provide guidance, not binding authority, for courts in determining whether a party's law firm, at its adversary's instance should be disqualified during litigation. Courts must consider such factors as the party's valued right to choose its own counsel, and the fairness and effect in the particular factual setting granting disqualification or continuing representation (see S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 NY2d 437 [1987]). Disqualification may be required only when it is likely that the testimony to be given by the witness is necessary (J. P. Foley & Co. v. Vanderbilt, 523 F2d 1357 [2d Cir 1975]), and where the party seeking disqualification clearly shows that the opposing counsel's projected testimony will be adverse to the client (Toren v. Anderson, Kill & Olick, 185 Misc 2d 23 [2000]; S & S Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., supra; Broadwhite Assoc. v. Truong, 237 AD2d 162 [1st Dept 1997]).
Courts must apply the factors enumerated in the disciplinary rule on a case-by-case basis to determine if disqualification is warranted. Thus, courts have denied disqualification when an attorney's projected testimony was not shown to be "sufficiently" adverse to the factual assertions or account of events offered on behalf of the client (Freeman v. Kulicke & Soffa Indus., Inc., 449 F Supp 974, 977 [1978], affd 591 F2d 1334 [3d Cir 1979]; Ocean-Clear, Inc. v. Continental Cas. Co., 94 AD2d 717 [2d Dept 1983]). Courts have granted disqualification when a member of the law firm representing the defendant will be...
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