Opinion
2005-251 N C.
Decided December 30, 2005.
Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered November 23, 2004. The order, sua sponte, severed the causes of action without passing upon plaintiffs' motion for summary judgment.
On the court's own motion, the notice of appeal from so much of the order as, sua sponte, severed the causes of action is treated as an application for leave to appeal, and such leave is granted ( see Tilcon N.Y. v. Transcontinental Ins. Co., 261 AD2d 608).
PRESENT: RUDOPLH, P.J., McCABE and TANENBAUM, JJ
Order unanimously modified by remanding the matter of Valery A. Berger, M.D., Assignee of Svetlana Demine v. Liberty Mutual Insurance Company to the court below for a determination of said plaintiff's motion for summary judgment; as so modified, affirmed without costs.
In or about February 2004, 11 different plaintiffs commenced this action to recover attorney's fees and interest on 14 first-party no-fault claims, based on 14 unrelated assignors involved in accidents on 14 different dates, which defendant allegedly untimely paid. A review of the record indicates that said claims have no common contract of insurance and have no relation or similarity to each other, other than the fact that the no-fault benefits were allegedly untimely paid by defendant. Consequently, we find that the court below did not abuse its discretion in severing the causes of action in the furtherance of convenience ( see CPLR 603; Mount Sinai Hosp. v. Motor Veh. Acc. Indem. Corp., 291 AD2d 536). Thus, plaintiffs' remaining contentions are rendered academic. However, since the first cause of action relating to Valery A. Berger, M.D. remained under the original index number following severance, the court below should have determined the summary judgment motion on behalf of this plaintiff. Accordingly, the case is remanded for such a determination.