In Van Nostrand v. NYCM Fire Ins. Co., the plaintiff recovered an underlying judgment against NYCM's insured, Froehlich, in excess of Froehlich's liability insurance with NYCM. The plaintiff then took an assignment of Froehlich's "bad faith" claim against NYCM for refusal to settle within policy limits. Plaintiff commenced this action as subrogee of Froehlich and NYCM moved to disqualify plaintiff's counsel on the basis that he represented plaintiff in the underlying action, and would therefore have to be a witness in the "bad faith" action. The Supreme Court agreed and the Second Department affirmed.