Opinion
2020-273 Q C
09-17-2021
Queens Neurology, P.C., as Assignee of Jose Hernandez, Appellant, v. Travelers Property & Casualty Ins. Co., Respondent. Queens Neurology, P.C., as Assignee of Johnny Ho, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Winifred Higgins, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Alex Gonzalez, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Robert Roman, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Tanya S. German, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Darrell Robinson, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Peter John, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Michael Green, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Vanessa Gurley, Appellant, v. GEICO Casualty Insurance, Respondent. Queens Neurology, P.C., as Assignee of Dennis Williams, Appellant, v. 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.
Unpublished Opinion
MOTION DECISION
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.
PRESENT DAVID ELLIOT, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
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 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 A.D.2d 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.