Opinion
744983/17
06-15-2018
REGAL ACUPUNCTURE P.C., a/a/o Guicelly Morales, Julian Morales, Julio Morales, Raymond Morales, Tiana Morales, Leon Mosley, Rayando Myrie, Plaintiff, v. GEICO GEN. INS. CO., Defendant.
For Plaintiff: Zara Javakov, Esq., 100 Livingston St., 4th Floor, Brooklyn, NY 11201 For Defendant: Michele R. Rita Esq., Rivkin Radler LLP, 926 RXR Plaza, Uniondale, NY 11556
For Plaintiff: Zara Javakov, Esq., 100 Livingston St., 4th Floor, Brooklyn, NY 11201
For Defendant: Michele R. Rita Esq., Rivkin Radler LLP, 926 RXR Plaza, Uniondale, NY 11556
Odessa Kennedy, J.
RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:
Notice of Motion 1
Answering Affidavit 2
Reply Affidavit 3
The Court hereby sua sponte vacates its decision and order dated May 17, 2018, and substitutes the following:
Defendant moves for an order severing the claims related to each assignor, and directing plaintiff to litigate each claim in a separate action.
Claims may be severed where the facts relating to each claim are unlikely to raise few, if any, common issues of law or fact, even if the assignors' insurance policies are identical (see Ladim DME, Inc. v. GEICO Gen. Ins. Co. , 15 Misc 3d 139(A), 2007 NY Slip Op. 50997(U) [App. Term, 2nd Dept., 2nd & 11th Jud. Dists., 2007]; Metro Med. Diagnostics, P.C. v. Motor Veh. Acc. Indem. Corp , 6 Misc 3d 136(A), 2005 NY Slip Op. 50238(U) [App. Term, 2d Dept., 2d & 11th Jud. Dists., 2005] ). Where there are so many claims that it would be unwieldy to try the claims together and would create a substantial risk of confusing the trier of fact, severance is proper (see Pool v Allstate Ins. Co., 20 AD3d 518, 799 N.Y.S.2d 247 [2d Dept. 2005] ).
Conversely, severance should be denied, where the actions involve common factual and legal issues, and the interest of judicial economy and consistency of verdicts will be served by a single trial. (see New York Central Mutual Insurance Company v John McGee , 87 AD3d 622, 928 N.Y.S.2d 360 [2d Dept. 2011] ).
In the case at bar, the claims related to assignors Guicelly Morales, Julien Morales, Julio Morales and Taina Morales, involve the same date of incident, insurance policy and defense of lack of medical necessity which is premised on peer review reports of the same three physicians, Dr. Hershion, Dr. Dureja and Dr. Kim.
In support of the motion, defendant submits an attorney affirmation, which does not establish any material distinction in the above four claims requiring severance. Nor does the affirmation describe the nature and the extent of the injuries, nor likely prejudice resulting from the joinder of the claims. Defendant claims severance is required, because the proof required to defend each claim is "so different", as each assignor obtained distinct treatment for unique injuries. The affirmation however, does not describe the nature or the extent of the alleged injuries sustained by the assignors or their treatments. Moreover, the contention that each claim requires drastically different proof to defend, is not substantiated by the defendant's peer review reports, which state that the above assignors all sustained resolved sprains/strains. The peer review reports are not referenced in the affirmation, and are obscured as part of a voluminous exhibit to the motion, containing defendant's records related to all assignors.
Based on the foregoing, defendant's affirmation is conclusory and the motion to sever as to the causes of actions related to the assignors Guicelly Morales, Julien Morales, Julio Morales and Taina Morales is denied. (See Radiology Today, P.C. v Geico Ins. Co. , 58 Misc 3d 132(A), 2017 NY Slip Op. 51768(U) [App Term., 2d Dept., 2d, 11th & 13th Jud Dists 2017).
As to the claims pertaining to the assignors, Raymond's Morales, Leon Mosley, Ryando Myrie, defendant's motion to sever is granted, as the claims are unlikely to raise few, if any, common issues of law or fact, and involve different motor vehicle incidents.
The within index number shall include Regal Acupuncture, P.C. a/a/o. Guicelly Morales, Julien Morales, Julio Morales and Taina Morales. The remaining claims shall be litigated in separate actions.
Defendant's time to file motion for summary judgment is hereby extended to 60 days from the date of this Order.