The arguments by defendant PSM regarding the alleged inability of plaintiff to recover on a claim of bad faith against PSM, predicated only upon plaintiff's exposure to punitive damages in the underlying action, as well as PSM's argument that plaintiff cannot recover due to the fact that the policy prohibited plaintiff from settling the underlying action without PSM's consent, were previously addressed and rejected by this
Court on PSM's appeal from the denial of its motion for summary judgment (Ansonia Assocs. Ltd. Partnership v. Pub. Serv. Mut. Ins. Co., 257 A.D.2d 84).
Furthermore, the reasonableness of the settlement amount imposed on PSM in the underlying action was sufficiently established at trial. Contrary to PSM's contentions, in addition to other evidence of damages, there was evidence that one plaintiff suffered from post-traumatic stress disorder, and that the decedent experienced severe pain and suffering for 18 to 25 minutes as she slowly asphyxiated. This evidence of pain and suffering alone would support a substantial damage award (see, Ramos v. La Montana Moving Storage, 247 A.D.2d 333).
The court also properly denied PSM's motion to disqualify plaintiff's counsel, since plaintiff had no intention of calling counsel to testify and PSM failed to demonstrate that the attorney's testimony was necessary (see, SS Hotel Ventures Ltd. Partnership v. 777 S. H. Corp., 69 N.Y.2d 437, 445-446). PSM also failed to demonstrate that counsel's testimony, when called by PSM to testify, was prejudicial to plaintiff (Code of Professional Responsibility DR 5-102[d][22 NYCRR § 1200.21(d)]).
We have examined PSM's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.