November 30, 2018

Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co. (2018 NY Slip Op 51785(U))

https://www.beynensonlaw.com/case-law/majestic-acupuncture-p-c-v-interboro-mut-ins-co-2018-ny-slip-op-51785u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51785(U)
Posture: Other motion
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 2018 NY Slip Op 51785(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 justify severance merely by citing separate accidents and numerous affirmative defenses. The provider sought assigned no-fault benefits for services rendered to three assignors. The insurer moved under CPLR 603 to sever one assignor's claim from the others. Separate accidents and 50 pleaded defenses, standing alone, did not show that the claims would involve different factual and legal questions. Severance rests in judicial discretion, and appellate intervention requires a showing of prejudice to a substantial right. The Appellate Term, Second Department, affirmed denial of the insurer's motion because the record did not establish an improvident exercise of discretion.

Reported in New York Official Reports at Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co. (2018 NY Slip Op 51785(U))

[*1]

Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co.

2018 NY Slip Op 51785(U)

Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 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
2016-2050 K C

Majestic Acupuncture, P.C., as Assignee of Lucila Hernandez, Shifro Khaimova and Robin Khaimova, Respondent,
against
Interboro Mutual Ins. Co., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, 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 September 16, 2014. The order denied defendant’s motion to sever so much of the complaint as sought to recover upon a claim for services rendered to Lucila Hernandez from the remaining claims.

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 three assignors. Defendant moved, pursuant to CPLR 603, to sever so much of the complaint as sought to recover upon a claim for services rendered to Lucila Hernandez from the remaining claims, which sought to recover upon claims for services rendered to Shifro Khaimova and Robin Khaimova. Defendant’s counsel asserted that the claims had arisen out of two different 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 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 50 [*2]defenses in its answer, these two facts, standing alone, do not demonstrate that resolution of the claims for services rendered to plaintiff’s assignors 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: November 30, 2018

Cited in this decision

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.

Cited by

A label shows how the later decision treated this one.

Unique Physical Therapy, PT, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50323(U)) FollowedNo-fault claims arising from separate accidents do not alone warrant severance under CPLR 603.
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

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.
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.
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.
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.
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.