May 15, 2007

Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U))

https://www.beynensonlaw.com/case-law/ladim-dme-inc-v-geico-gen-ins-co-2007-ny-slip-op-50997u/

Court: Appellate Term, Second Department
Decided: May 15, 2007
Citation: 2007 NY Slip Op 50997(U) · 15 Misc 3d 139(A)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Discovery and procedure

Cite as

Ladim DME, Inc. v GEICO Gen. Ins. Co., 15 Misc 3d 139(A), 2007 NY Slip Op 50997(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2007)

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's answer supplied a basis to sever five assignors' claims arising from separate accidents without a prejudice affidavit. The provider joined claims allegedly arising from five accidents, and the insurer sought severance under CPLR 603. The Appellate Term, Second Department, reversed the denial and granted separate actions for each assignor. The particular claims were likely to present few common factual or legal issues, even if the policies were identical. The answer disputed the necessity and reasonableness of each assignor's services and the sufficiency of the claim forms. Those pleaded disputes alone placed the basis for severance at issue; an affidavit from someone with personal knowledge of prejudice was unnecessary.

Reported in New York Official Reports at Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U))

[*1]

Ladim DME, Inc. v GEICO Gen. Ins. Co.

2007 NY Slip Op 50997(U) [15 Misc 3d 139(A)]

Decided on May 15, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-518 Q C.

Ladim DME, Inc. a/a/o Alex Nesanelis, Leonce Guhes, Robert Vacco, Martha Oliver and Gloria Pino, Respondent,
against
GEICO General Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered December 28, 2005. The order denied defendant’s motion for severance.

Order reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover no-fault benefits as assignee of five individuals. The claims allegedly arose out of five separate accidents. Defendant
moved to sever the five causes of action in the complaint into five separate actions pursuant to CPLR 603, which motion the court below denied. The instant appeal by defendant ensued.

We find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud [*2]Dists]; 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 & 11th Jud Dists]). Defendant’s answer clearly places at issue with respect to each assignor, inter alia, the necessity and reasonableness of the particular medical services rendered and the sufficiency of the no-fault claim forms that have been submitted. To the extent plaintiff argued that defendant needed to proffer an affidavit from someone with personal knowledge regarding prejudice to the defendant as a result of plaintiff’s joinder of the claims, this court has consistently held that the answer, without more, places at issue the basis for severance (see S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U], supra; Metro Med. Diagnostics, P.C. v Motor Veh.
Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U], supra). Accordingly, defendant’s motion to sever the causes of action should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 15, 2007

Cited in this decision

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

Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co. (2004 NY Slip Op 07960)The provider's 68 assigned claims were properly severed because individual issues predominated and a joint trial risked confusion.
S.I.A. Med. Supply Inc. v GEICO Ins. Co. (2005 NYSlipOp 51170(U)) FollowedThe provider's claims for 11 assignors were severed because they presented few common issues and a joint trial risked confusion.
Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 50238(U)) FollowedMVAIC's motion to sever claims arising from three separate accidents was granted because few common issues were likely.

Cited by

A label shows how the later decision treated this one.

Georgetown Mind-Body Med., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 52464(U)) FollowedSeverance of no-fault claims may rest solely on allegations in the answer without a showing of prejudice.
Austin Diagnostic Med., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51680(U)) FollowedThe insurer obtained severance because claims for nine assignors raised few, if any, common factual issues.
VNP Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50940(U)) FollowedThe insurer was entitled to sever claims arising from separate accidents and presenting few, if any, common factual issues.
New York Cent. Mut. Ins. v McGee (2009 NY Slip Op 52385(U))The insurer's common-ownership allegations did not justify joining all provider defendants, and its requested injunction lacked evidentiary support.
Astoria Quality Med. Supply v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op 51855(U))Severance under CPLR 603 is discretionary and ordinarily stands on appeal absent prejudice to a substantial right.

Similar decisions

Ocean Diagnostics Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50913(U))The provider's claims from 11 separate accidents were properly severed because the defenses raised few common issues of law or fact.
Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. (2019 NY Slip Op 51704(U))The insurer's severance motion was granted because the four assignors' claims arose from separate accidents with few common factual issues.
Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. (2019 NY Slip Op 51703(U))The insurer was entitled to sever six assignors' claims arising from separate accidents and denied for lack of medical necessity.
RJA Physical Therapy, P.C. v Geico Cas. Co. (2012 NY Slip Op 52047(U))The insurer's severance motion was warranted because claims involving seven assignors and six accidents raised few common issues of law or fact.
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.