May 18, 2018

City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U))

https://www.beynensonlaw.com/case-law/city-chiropractic-p-c-v-auto-one-ins-co-2018-ny-slip-op-50730u/

Court
Appellate Term, Second Department
Decided
May 18, 2018
Citation
2018 NY Slip Op 50730(U) · 59 Misc 3d 144(A)
Posture
Other motion
Outcome
Provider prevailed
Issues
Discovery and procedure
Cite as
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)

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.

The insurer failed to show that claims involving two accidents and numerous pleaded defenses warranted severance under CPLR 603. The provider sought assigned no-fault benefits for services rendered to two assignors injured in separate accidents. The insurer moved to sever the causes of action, relying on the separate accidents and 48 defenses in its answer. Those facts did not demonstrate that resolving the claims would involve different questions of fact and law. Severance rests in judicial discretion, which should not be disturbed absent prejudice to a substantial right. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, finding no improvident exercise of discretion.

Reported in New York Official Reports at City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U))

[*1]
City Chiropractic, P.C. v Auto One Ins. Co.
2018 NY Slip Op 50730(U) [59 Misc 3d 144(A)]
Decided on May 18, 2018
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 18, 2018

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


PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-1618 K C
City Chiropractic, P.C., as Assignee of Victoria A. Lliguichuzhca and Taysha Tuesca, Respondent,

against

Auto One Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered March 16, 2015. The order denied defendant’s motion to sever a cause of action seeking to recover upon a claim for services rendered to Victoria A. Lliguichuzhca from the remaining cause of action.

ORDERED that the order is affirmed, with $25 costs.

The complaint in this action by a provider to recover assigned first-party no-fault benefits seeks to recover for services that had been rendered to two assignors. Defendant moved, pursuant to CPLR 603, to sever a cause of action seeking to recover upon a claim for services rendered to Victoria A. Lliguichuzhca from the remaining cause of action, which sought to recover upon a claim for services rendered to Taysha Tuesca. Defendant’s counsel asserted that the causes of action had arisen out of two different accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion as premature, stating that defendant had not annexed the denial of claim forms for the claims at issue and that defendant had failed to establish that the claims involved different questions of fact and law.

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 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 demonstrate that resolution of the claims for services rendered to Victoria A. Lliguichuzhca and Taysha Tuesca will involve different questions of fact and law. 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 is affirmed.

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



ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018

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