March 8, 2019

Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50276(U))

https://www.beynensonlaw.com/case-law/himalayans-acupuncture-p-c-v-global-liberty-ins-co-of-n-y-2019-ny-slip-op50276u/

Court: Appellate Term, Second Department
Decided: March 8, 2019
Citation: 2019 NY Slip Op 50276(U)
Posture: Other motion
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 50276(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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Summary

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

Separate accidents and multiple pleaded defenses did not establish that the provider's claims required severance. The insurer moved under CPLR 603 to sever the first cause of action from the remaining causes in an action for assigned no-fault benefits. Although the assignors were injured in separate accidents and the insurer pleaded 48 defenses, those facts did not demonstrate that resolving each assignor's claims would involve different questions of law and fact. Severance rests in judicial discretion, and appellate intervention requires a showing of prejudice to a substantial right. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding no improvident exercise of discretion in denying the insurer's motion.

Reported in New York Official Reports at Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50276(U))

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

Himalayans Acupuncture, P.C., as Assignee of Davron Khuseynov, Diblar Sharipova and Djalilov Shavkat, Respondent,
against
Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

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 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 Davron Khuseynov 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 had sought, pursuant to CPLR 603, to sever the first cause of action seeking to recover upon a claim for services rendered to Davron Khuseynov from the remaining causes of action. Defendant’s counsel asserted that the causes of action had arisen out of two accidents and that multiple defenses had been interposed in the answer. 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 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]). In the instant matter, while the assignors were injured in separate accidents and defendant interposed 48 defenses in its answer, these two facts do not [*2]demonstrate that resolution of the claims for services rendered to each assignor will involve different questions of law and fact. As such, the record does 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.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 08, 2019

Cited in this decision

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.

Similar decisions

New York Infinity Health Care, LCSW, P.C. v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 50278(U))The insurer's motion under CPLR 603 to sever the first no-fault cause of action from the remaining causes of action was denied and affirmed on appeal.
Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co. (2018 NY Slip Op 51785(U))The insurer failed to justify severance merely by citing separate accidents and numerous affirmative defenses.
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.
VNP Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50940(U))The insurer was entitled to sever claims arising from separate accidents and presenting few, if any, common factual issues.
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.