October 18, 2019

Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. (2019 NY Slip Op 51703(U))

https://www.beynensonlaw.com/case-law/westchester-radiology-imaging-p-c-v-geico-cas-co-2019-ny-slip-op-51703u/

Court: Appellate Term, Second Department
Decided: October 18, 2019
Citation: 2019 NY Slip Op 51703(U) · 65 Misc 3d 140(A)
Posture: Other motion
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Westchester Radiology & Imaging, P.C. v GEICO Cas. Co., 65 Misc 3d 140(A), 2019 NY Slip Op 51703(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer was entitled to sever six assignors' claims arising from separate accidents and denied for lack of medical necessity. The provider sought assigned no-fault benefits in a single action, and the insurer moved under CPLR 603 to sever the causes of action into six separate actions. The complaint alleged six accidents on different dates. Medical necessity was inherently distinct to each assignor, leaving likely few, if any, common factual issues. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to sever.

Reported in New York Official Reports at Westchester Radiology & Imaging, P.C. v GEICO Cas. Co. (2019 NY Slip Op 51703(U))

[*1]

Westchester Radiology & Imaging, P.C. v GEICO Cas. Co.

2019 NY Slip Op 51703(U) [65 Misc 3d 140(A)]

Decided on October 18, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1276 K C

Westchester Radiology and Imaging, P.C., as Assignee of Mohammed Alam, Nancy Aponte, Ernesto Carmona, Richard Cruz, Demekio Ramsey and Sidney Tuzzolino, Respondent,

against

GEICO Casualty Company, Appellant.

Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered May 10, 2018. The order, insofar as appealed from as limited by the brief, denied defendant’s motion to sever the claim of each assignor into separate actions.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion to sever the claim of each assignor into separate actions is granted.

In this action by a provider to recover first-party no-fault benefits assigned to it by six assignors, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant’s motion pursuant to CPLR 603 to sever the causes of action into six separate actions.

The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates and the denial of claim forms indicate that the claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor. Therefore, there are likely to be few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2012]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion to sever the claims into separate actions is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019

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.
Maria Oca, M.D., P.C. v MVAIC (2012 NY Slip Op 50758(U)) FollowedMVAIC's motion to sever was granted because the three assignors' claims arose from separate accidents and were unlikely to share factual issues.

Similar decisions

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.
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.
Georgetown Mind-Body Med., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 52464(U))Severance 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))The insurer obtained severance because claims for nine assignors raised few, if any, common factual issues.
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.