February 5, 2007

King’s Med. Supply Inc. v GEICO Cas. Ins. Co. (2007 NY Slip Op 50232(U))

Headnote

The court considered the fact that the plaintiff medical supply company was seeking to recover first-party no-fault benefits as the assignee of five individuals injured in separate motor vehicle accidents. The defendant insurance company moved to sever the five causes of action, arguing that they involved different questions of fact and law. The issue was whether the claims should be severed, as the plaintiff argued that all the claims were denied for the same reason and sought payment for the same type of medical equipment. The court held that the decision to grant a severance is an exercise of judicial discretion, and in the absence of a showing of prejudice to a substantial right, should not be disturbed on appeal. Since the denial of the claims was based on five different peer reviews, resulting in testimony at trial from different doctors on the issue of medical necessity, the court affirmed the order granting severance.

Reported in New York Official Reports at King’s Med. Supply Inc. v GEICO Cas. Ins. Co. (2007 NY Slip Op 50232(U))

King’s Med. Supply Inc. v GEICO Cas. Ins. Co. (2007 NY Slip Op 50232(U)) [*1]

King’s Med. Supply Inc. v GEICO Cas. Ins. Co.

2007 NY Slip Op 50232(U) [14 Misc 3d 136(A)]

Decided on February 5, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 5, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2006-303 K C.

King’s Medical Supply Inc. a/a/o Iolene Williams, Mostafa Bennejima, Emilio Santos, Jeffrey Adams and Marnol Decastro, Appellant,
against
GEICO Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 6, 2006. The order granted defendant’s motion to sever five causes of action.

Order affirmed without costs.

Plaintiff medical supply company commenced this action to recover the sum of $4,880 in first-party no-fault benefits, as assignee of five individuals who were injured in five separate motor vehicle accidents. Defendant insurance company moved for severance of the causes of action, arguing that there were five separate and distinct
claims involving different questions of fact and law. Plaintiff maintained that all of the claims were denied for the same reason, lack of medical necessity, and that four of the five claims sought payment for the same type of medical equipment. The court below granted defendant’s motion for severance and directed plaintiff to purchase four additional index numbers.

The decision to grant a severance (see CPLR 603) is an exercise in judicial discretion, which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see Mothersil v Town Sports Intl., 24 AD3d 424, 425 [2005]; Anderson v Singh, 305 AD2d 620 [2003]). In the instant matter, denial of the claims was based on five different peer reviews, which could result in testimony at trial from five different doctors on the issue of medical necessity. “[T]he 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” (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 Dists]). A single trial involving different sets of facts regarding the [*2]underlying accidents, injuries and nature and cost of supplies has a danger of being unwieldy and confusing. Accordingly, the order granting severance is affirmed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: February 5, 2007