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April 16, 2021

Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50323(U))

https://www.beynensonlaw.com/case-law/unique-physical-therapy-pt-p-c-v-global-liberty-ins-co-of-n-y-2021-ny-slip-op50323u/

Court
Appellate Term, Second Department
Decided
April 16, 2021
Citation
2021 NY Slip Op 50323(U)
Posture
Other motion
Outcome
Provider prevailed
Issues
Discovery and procedure
Cite as
Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of N.Y., 2021 NY Slip Op 50323(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

No-fault claims arising from separate accidents do not alone warrant severance under CPLR 603. The insurer sought to sever the provider's first cause of action from four others, relying only on the pleadings and asserting separate accidents and multiple defenses. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying severance. Separate accidents and 55 pleaded affirmative defenses did not compel a conclusion that the claims presented different factual or legal questions. Severance rests in judicial discretion, and the insurer did not establish an improvident exercise of that discretion. The court clarified that Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. rested on assignor-specific IME nonappearance defenses, rather than separate accidents alone.

Reported in New York Official Reports at Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50323(U))

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

Unique Physical Therapy, PT, P.C., as Assignee of Yolanda DeLeon, et al., Respondent,

against

Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum and Shaaker Bhuiyan of counsel), for appellant. Petre and Zabokritsky, P.C. (Damin Toell and Mark Petre of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered August 17, 2016. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Yolanda Deleon from the remaining causes of action.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion, which, relying only on the pleadings, had sought, pursuant to CPLR 603, to sever the first cause of action, seeking to recover upon a claim for services rendered to Yolanda Deleon, from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of five accidents and that multiple defenses had been interposed in the answer. By order entered August 17, 2016, the Civil Court denied defendant’s motion.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co., 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; King’s Med. Supply Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). Here, the conclusion that resolution of the claim for services rendered to Yolanda Deleon will involve different questions of fact and law from the claims for services rendered to the other assignors is not compelled by the fact that the assignors were injured in separate [*2]accidents or by defendant’s pleading of 55 affirmative defenses (see Majestic Acupuncture, P.C., 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U]). To the extent that defendant cites Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (65 Misc 3d 140[A], 2019 NY Slip Op 51704[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]) to support the opposite conclusion, it should not be relied upon for the proposition that severance is warranted solely on the ground that no-fault claims arose out of multiple car accidents on different dates. The record in Premier demonstrated that the denial of each claim was based on the particular assignor’s failure to appear for scheduled independent medical examinations and, while omitted from the decision, that fact was the basis for this court’s determination.

In view of the foregoing, defendant did not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion. Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 16, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

  • Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co. (2018 NY Slip Op 51785(U)) FollowedThe insurer failed to justify severance merely by citing separate accidents and numerous affirmative defenses.
  • City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U))The insurer failed to show that claims involving two accidents and numerous pleaded defenses warranted severance under CPLR 603.
  • King’s Med. Supply Inc. v GEICO Cas. Ins. Co. (2007 NY Slip Op 50232(U))Severance of five no-fault claims was upheld because separate accidents and peer reviews presented few common factual or legal issues.
  • Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 51704(U)) LimitedThe insurer's severance motion was granted because the four assignors' claims arose from separate accidents with few common factual issues.

Cited by

  • Rite Aid Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51161(U))The insurer was entitled to severance because the two assignors' claims arose from separate accidents and involved different defenses.

Similar decisions

  • Unique Physical Rehab, PT, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50277(U))The denial of the insurer's CPLR 603 motion to sever the first no-fault cause of action from the remaining causes was affirmed on appeal.
  • Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50276(U))Separate accidents and multiple pleaded defenses did not establish that the provider's claims required severance.
  • Chiropractic Longevity, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51974(U))The insurer's severance argument was moot because it presented no argument against summary judgment on the cause of action it sought to sever.
  • Arcadia Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51707(U))The insurer's severance motion was granted because separate accident claims were likely to raise few, if any, common factual issues.
  • Clarke v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51708(U))The insurer's severance motion was granted because separate accident claims were likely to raise few, if any, common factual issues.
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