Queens Neurology, P.C. v. Travelers Prop. & Cas. Ins. Co.

Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co. (2021 NY Slip Op 50887(U)) [*1] Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co. 2021 NY Slip Op 50887(U) [73 Misc 3d 127(A)] Decided on September 17, 2021 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 17, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : DAVID ELLIOT, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ 2020-273 Q C Queens Neurology, P.C., as Assignee of Jose Hernandez, Appellant, against Travelers Property & Casualty Ins. Co., Respondent. Queens Neurology, P.C., as Assignee of Johnny Ho, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Winifred Higgins, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Alex Gonzalez, Appellant, against GEICO Casualty Insurance, Respondent. [*2]Queens Neurology, P.C., as Assignee of Robert Roman, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Tanya S. German, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Darrell Robinson, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Peter John, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Michael Green, Appellant, against GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Vanessa Gurley, Appellant, against GEICO Casualty Insurance, Respondent. [*3]Queens Neurology, P.C., as Assignee of Dennis Williams, Appellant, against GEICO Casualty Insurance, Respondent. Gary Tsirelman, P.C. (Stefan Belinfanti and Gary Tsirelman of counsel), for appellant. Law Office of Tina Newsome-Lee, for respondent Travelers Property & Casualty Ins. Co. (no brief filed). Law Office of Goldstein, Flecker & Hopkins (Tali K. Hernstat of counsel), for respondent GEICO Casualty Insurance. Appeals from an order of the Civil Court of the City of New York, Queens County (John C.V. Katsanos, J.; op 67 Misc 3d 171 [2020]), entered January 3, 2020. The order, insofar as appealed from, upon, in effect, granting the branch of plaintiff's motion seeking to consolidate 27 actions, including the above-captioned 11 actions, for the purposes of the disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff's attorney of record in each of the above-captioned actions. ORDERED that, on the court's own motion, the appeals are consolidated for the purposes of disposition; and it is further, ORDERED that the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff's motion seeking to substitute Gary Tsirelman, P.C., as plaintiff's attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff's motion, and by further vacating the Civil Court's findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion; as so modified, the order, insofar as appealed from, is affirmed, without costs. These actions by a provider to recover assigned first-party no-fault benefits were commenced in 2000 and 2001. In 2009, plaintiff corporation voluntarily dissolved. In 2017, plaintiff brought the instant motion seeking to, among other things, consolidate the various [*4]actions for purposes of the motion and to substitute Gary Tsirelman, P.C., as plaintiff's attorney of record in each action. Insofar as is relevant to this appeal, by order entered January 3, 2020, the Civil Court, upon, in effect, granting the branch of the motion seeking to consolidate the above-captioned actions for purposes of disposition of the motion, denied the branches seeking to, among other things, substitute Gary Tsirelman, P.C., as plaintiff's attorney of record in each of the above-captioned actions (Queens Neurology, P.C. v Travelers Prop. & Cas. Ins. Co., 67 Misc 3d 171 [Civ Ct, Queens County 2020]). With respect to the action against Travelers Property & Casualty Ins. Co., the Civil Court denied plaintiff's motion "due to Plaintiff's failure to provide proof of service." Since there was no argument made on this appeal that the action against Travelers Property & Casualty Ins. Co. was improperly dismissed, we do not disturb that part of the order. With respect to the 10 actions against GEICO Casualty Insurance, the court found that plaintiff, as a dissolved corporation, was no longer winding up its affairs (see Business Corporation Law §§ 1005, 1006) and thus was required to be substituted pursuant to CPLR 1017. The court further found that plaintiff had not sought substitution within four months or "a reasonable time" (CPLR 1021) following its dissolution, and, thus, had no standing to bring the instant motion. With certain exceptions not applicable here, "a corporation or voluntary association shall appear by attorney" (CPLR 321 [a]), and "[a] party's choice of counsel is a substantive right not to be taken away absent some overriding public interest" (Petrossian v Grossman, 219 AD2d 587, 588 [1995]). As plaintiff cannot take any action or make any arguments in the cases involving GEICO Casualty Insurance without an attorney, we vacate so much of the order as denied the branches of plaintiff's motion seeking to substitute counsel in these 10 actions and grant those branches of the motion. In light of the foregoing, any findings made by the Civil Court regarding whether plaintiff needed to be timely substituted (see CPLR 1017, 1021) and/or whether plaintiff was properly still winding up its affairs (see Business Corporation Law §§ 1005, 1006) were premature and are vacated. Accordingly, the order, insofar as appealed from, is modified by vacating so much thereof as denied the branches of plaintiff's motion seeking to substitute Gary Tsirelman, P.C., as plaintiff's attorney of record in each of the above-captioned actions in which GEICO Casualty Insurance is the defendant, by granting those branches of plaintiff's motion, and by additionally vacating the Civil Court's findings that plaintiff was no longer winding up its affairs, had failed to timely be substituted, and had no standing to bring this motion. ELLIOT, J.P., TOUSSAINT and GOLIA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: September 17, 2021