July 21, 2017

VNP Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50940(U))

https://www.beynensonlaw.com/case-law/vnp-acupuncture-p-c-v-american-commerce-ins-co-2017-ny-slip-op50940u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50940(U)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

VNP Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50940(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 was entitled to sever claims arising from separate accidents and presenting few, if any, common factual issues. The provider sued for services to eight assignors involved in three accidents. The first, third through fifth and seventh causes of action concerned two accidents and denials based on IME findings of lack of medical necessity and the workers' compensation fee schedule. The second, sixth and eighth causes concerned denials asserting that injuries did not arise from an insured incident. Those distinct defenses supported severance under CPLR 603. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion to sever the first, third through fifth and seventh causes of action.

Reported in New York Official Reports at VNP Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50940(U))

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

VNP Acupuncture, P.C., as Assignee of Jillian Crossan, Dmitry Golyatdinov, Maryna Kofman, Micheal McGrath, Sean Mescall, Alisher Rakhmatov, Elena Yanko and Azamat Yermagambetov, Respondent,
against
American Commerce Insurance Company, Appellant.

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant. Petre and Zabokritsky, P.C., respondent pro se (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 16, 2013. The order, insofar as appealed from, denied defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action is granted.

Plaintiff commenced this action to recover first-party no-fault benefits for services that had been rendered to eight different assignors in connection with three separate motor vehicle accidents. The complaint alleged separate causes of action for each assignor. Defendant moved, pursuant to CPLR 603, to sever from this action the first, third through fifth, and seventh causes of action, arguing that these causes of action arose out of two of the accidents, and that the defenses at issue in these causes of action involved different questions of fact and law from those involved in the remaining causes of action. By order entered December 16, 2013, the Civil Court, insofar as is relevant to this appeal, denied defendant’s cross motion.

The basis set forth on the denial of claim forms for the denial of the claims at issue in the second, sixth, and eighth causes of action was that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). By contrast, the claims at issue in the first, third through fifth, and seventh causes of [*2]action were denied on the grounds of lack of medical necessity after independent medical examinations and application of the workers’ compensation fee schedule. The claims incorporated in the first, third through fifth, and seventh causes of action are therefore likely to raise few, if any, issues of fact in common with those incorporated in the second, sixth and eighth causes of action (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion to sever from this action the first, third through fifth, and seventh causes of action is granted (see 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]).

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

ENTER:
Paul Kenny
Chief Clerk

Decision Date: July 21, 2017

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) FollowedThe provider's 68 assigned claims were properly severed because individual issues predominated and a joint trial risked confusion.
Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U)) FollowedThe insurer's answer supplied a basis to sever five assignors' claims arising from separate accidents without a prejudice affidavit.

Similar decisions

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.
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.
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.
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.
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.