Austin Diagnostic Med., P.C. v. Mercury Cas. Co.

Full title: Austin Diagnostic Medical, P.C. as Assignee of ELVIR CABALLERO, MICHAEL…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Nov 13, 2015

2015 N.Y. Slip Op. 51680 (N.Y. App. Term 2015)

26 N.Y.S.3d 723

Opinion

2013-1413 K C

11-13-2015

Austin Diagnostic Medical, P.C. as Assignee of ELVIR CABALLERO, MICHAEL DAVIS, ALEX MOZ, YESSENIA MOZ, ADAMIR REYEZ-PAZ, DIONE RIVERA, WILMER RODRIGUEZ, RAFAEL ROMERO and GARY WHYLLIE, Respondent, v. Mercury Casualty Company, Appellant.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2013. The order denied defendant's motion to sever the second through ninth causes of action into separate actions.

ORDERED that the order is reversed, with $30 costs, and defendant's motion to sever the second through ninth causes of action into separate actions is granted.

Plaintiff commenced this action to recover first-party no-fault benefits as assignee of nine individuals. The complaint alleged separate causes of action for each assignor. Defendant moved, pursuant to CPLR 603, to sever the second through ninth causes of action into separate actions, arguing that the nine causes of action arose out of six separate motor vehicle accidents and that each of the nine causes of action involves different questions of fact and law. By order entered May 29, 2013, the Civil Court denied defendant's motion.

Defendant's answer clearly places at issue with respect to each assignor, among other things, the necessity and reasonableness of the particular medical services rendered and whether the amount sought to be recovered in each cause of action exceeded the amount permitted by the workers' compensation fee schedule. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman's Fund Ins. Co., 12 AD3d 185 [2004]).

Accordingly, the order is reversed and defendant's motion to sever the second through ninth causes of action into separate actions is granted (see Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139[A], 2007 NY Slip Op 50997[U] [App Term, 2d & 11th Jud Dists 2007]).

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 13, 2015