SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered September 14, 2004. The order granted defendant’s motion to vacate a default judgment entered against it.

Order unanimously reversed without costs and defendant’s motion to vacate the default judgment denied.

Notwithstanding the strong public policy in favor of resolution of cases on the merits, upon a review of the record, we are of the opinion that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment. In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, defendant was required to establish both a reasonable excuse for the default and a meritorious defense to the action.

In its moving papers, defendant acknowledged having been served with the pleadings, and alleged in an affirmation by outside counsel and an affidavit by defendant’s claims handler, that the pleadings were sent by mail courier to another outside counsel, who failed to receive them. Defendant’s moving papers, however, did not include an affidavit by someone with [*2]personal knowledge of the underlying circumstances. Accordingly, defendant did not show a reasonable excuse for the default. Furthermore, defendant failed to sufficiently establish a meritorious defense. While the denial of claim forms which were submitted with the motion papers included the reasons for the denial of the claims, any assertions in defendant’s motion papers regarding the reasons for the denials were based solely upon the claim denial forms’ conclusory statements to that effect. There was no affidavit by anyone with personal
knowledge of the facts, no documentary proof of any requests for examinations under oath, and no proof that any such requests were mailed.
Decision Date: February 14, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered March 4, 2005. The order denied plaintiff’s motion for summary judgment, granted defendant’s cross motion for summary judgment and awarded defendant $250 in costs.

Order modified by denying defendant’s cross motion for summary judgment and deleting the provision awarding defendant $250 in costs; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical supplies provided to its assignor, plaintiff did not establish its prima facie entitlement to summary judgment since it failed to conclusively show that it submitted its claim form to defendant (see A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50387[U] [App Term, 2d & 11th Jud Dists]). Counsel’s affirmation was of no probative value since it was based upon allegations of a person without personal knowledge that the claim form was actually mailed to defendant (see e.g. Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]). Furthermore, the affidavit of plaintiff’s corporate officer failed to demonstrate submission of the claim form inasmuch as he did not state that he personally mailed the claim but merely stated that his file included the original proofs of mailing. Nor did his affidavit demonstrate that plaintiff followed a standard office practice or procedure designed to ensure that items were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Similarly, defendant’s cross motion for summary judgment should be denied in view of [*2]the circumstances surrounding the ambiguous post office documentation, thereby creating an issue of fact as to whether the subject claim form was ever mailed to defendant. In view of the foregoing, the provision of the order awarding defendant $250 in costs should be deleted.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: February 6, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, First District (Erica L. Prager, J.), entered January 26, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment and to dismiss the complaint.

Order affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits for medical services it provided to the injured assignor. Plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). The burden, therefore, shifted to defendant to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the verification requests were timely mailed. Defendant neither submitted an affidavit from one with personal knowledge alleging that the verification requests were mailed to plaintiff (see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]), nor did defendant create a presumption of mailing by submission of an affidavit adequately describing the standard operating procedures it uses to ensure that its verification requests were mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Absent proof of a tolling of the 30-day claim determination period (11 NYCRR 65.15 [*2][d], now 11 NYCRR 65-3.8), defendant is now precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including any deficiency in the assignment (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna
Cas. & Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Consequently, the motion court properly granted plaintiff’s motion for summary judgment and denied defendant’s cross motion.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 03, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Manuel J. Mendez, J.), entered November 15, 2004. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

Contrary to the determination of the court below, in this action to recover first-party no-fault benefits for medical services rendered to its assignors for injuries they sustained in accidents in February and May 2003, plaintiff established its prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Since defendant failed to seek verification of any of the assignments, and did not allege any deficiency in the assignments in its denial of claim forms, it waived any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & [*2]Sur. Co., 233 AD2d 433 [1996]; A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]).

Defendant failed to raise a triable issue of fact as to the $912 claim (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). It is uncontroverted that defendant received plaintiff’s $912 claim in July 2003, for which it requested, in October 2003, additional verification in the form of an examination under oath. Since defendant failed to show how its October request was timely made (see 11 NYCRR 65-3.5 [b]), we find that said [*3]
request was untimely and the 30-day statutory period within which it had to pay or deny the claim was not tolled (see e.g. Struhl v Progressive Cas. Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50864 [App Term, 9th & 10th Jud Dists]). Assuming, arguendo, that the additional verification request was timely, defendant would have, nonetheless, failed to raise a triable issue of fact since it did not provide plaintiff with a follow-up request after the assignor did not appear for the scheduled examination (see 11 NYCRR 65-3.6 [b]). By not providing plaintiff with a follow-up request, defendant abandoned its verification request and may not, as a matter of law, use the failure of the plaintiff to provide said verification as a basis to deny the claim (see King’s Med. Supply v Kemper Auto & Home Ins. Co., 7 Misc 3d 128[A], 2005 NY Slip Op 50450 [App Term, 2d & 11th Jud Dists]). Consequently, defendant is precluded from raising most defenses as to the $912 claim, and plaintiff is entitled to summary judgment thereon.

In support of its motion for summary judgment to recover its $2,670.40 claim for MRIs provided to its assignor, plaintiff submitted defendant’s timely denial of claim form which included an unsworn peer review report dated March 2003, asserting the lack of medical necessity for the MRIs based upon a review of a doctor’s report dated March 19, 2003. However, also in support of its motion, plaintiff submitted another report from the same doctor, dated February 26, 2003, which asserted in sufficient detail the [*4]
medical necessity for the MRIs. Since plaintiff’s moving papers asserted, in admissible form, the medical necessity of the MRIs, and defendant’s opposition papers failed to address plaintiff’s proof as set forth in the sworn February doctor’s report, defendant failed to raise any triable issue with respect to the lack of medical necessity. Consequently, plaintiff is entitled to summary judgment on its $2,670.40 claim.

In view of the foregoing, the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum. [*5]
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
OCEAN DIAGNOSTIC IMAGING P.C.
a/a/o Salena Harrell
Jose Batiz,

Appellant,

-against-
ALLSTATE INSURANCE COMPANY,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in the cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

I must also note an important precept of law that has been properly applied in this case but is all too often forgotten. Once a party affirmatively and properly establishes an issue of fact, it is incumbent upon the other side to oppose it either factually or on “legal’ grounds. Failure to do so will result in that particular issue being determined in favor of the proponent (Millennium Med. Instruments v NYC Trans. Auth., 10 Misc 3d 139[A], 2005 NY Slip Op 52205[U] [App Term, 2d & 11th Jud Dists]). It must be remembered that this precept must be applied equally to both sides.

In the case at bar, the plaintiff presented a medical report in its motion for summary judgment by a Dr. Raufov dated February 26, 2003. That document effectively rebutted the findings of the defendant’s peer review doctor who did not consider the February 26, 2003 report when making his findings that resulted in a denial of benefits form being served on the claimant.

Inasmuch as the defendant failed to address this issue in its opposing papers, the majority was correct in holding that plaintiff’s prima facie showing of medical necessity went unrebutted and therefore was deemed proven. [*6]
Decision Date: February 03, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Respondent Republic Western Insurance Co. appeals from a judgment of the Civil Court, New York County (Geoffrey D. Wright, J.), entered October 27, 2003, in favor of petitioner and awarding it damages in the principal sum of $17,348.79.

PER CURIAM:

Judgment (Geoffrey D. Wright, J.), entered October 27, 2003, affirmed, without costs.

The petition to confirm the arbitration award was properly granted. By failing to apply for a stay of arbitration prior to arbitration, respondent Republic Western waived its present contention that the underlying subrogation claim is not arbitrable under Insurance Law § 5105(a) (Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]). In any event, respondent’s submission did not conclusively establish that the U-Haul vehicle involved in the accident did not meet the weight requirements necessary to trigger the no-fault benefits authorized by the statute (see Victoria Ins. Co. v Utica Mut. Ins. Co., 8 AD3d 87 [2004]).
This constitutes the decision and order of the Court.
Decision Date: February 03, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), entered February 28, 2005. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see
Insurance Law § 5106; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). The burden therefore shifted to defendant to show a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In the case at bar, the defendant failed to establish that the denial was timely mailed within the 30-day prescribed claim determination period. Defendant failed to submit any documentary proof or an affidavit from one with personal knowledge establishing that the denial was sent to plaintiff (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]). Nor did defendant create a presumption of mailing by submission of an affidavit describing the standard operating procedures it uses to ensure that its denial was mailed (see e.g. Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Ocean Diagnostic [*2]Imaging P.C. v General Assur. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50435[U] [App Term, 9th & 10th Jud Dists]). Defendant is therefore precluded from raising the defense that the procedure was not medically necessary because defendant neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day period (see
[*3]Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).
Consequently, the motion court properly granted plaintiff’s motion for summary
judgment.

Rudolph, P.J., Angiolillo and McCabe, JJ., concur.
Decision Date: February 02, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered October 29, 2004. The order granted plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). We find no merit to defendant’s contention that the failure of one of plaintiff’s assignors, Claire, to appear for an examination under oath (EUO) precludes summary judgment with respect to the claims submitted for treatment rendered to said assignor. The submissions of defendant’s claims representative and counsel failed to establish that they had personal knowledge that the letters requesting the EUO were mailed to Claire. Nor did said submissions create a presumption of mailing by setting forth the standard office practice or procedures used to ensure that such letters are properly addressed and mailed (see Amaze Med. Supply Inc. v State Farm Mut. Auto. Ins. Co., 8 Misc 3d 139[A], 2005 NY Slip Op 51315[U] [App Term, 2d & 11th Jud Dists]). Moreover, defendant failed to introduce evidence in admissible form establishing that the insurance policy it issued to its insured actually contained an endorsement entitling it to EUOs (see Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co., 7 Misc 3d 133[A], [*2]2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]).

Although defendant issued an untimely denial of the claim relating to plaintiff’s other assignor, Charmant, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). However, defendant failed to establish that it possessed a “founded belief that [Charmant’s] alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Indeed, although defendant annexed Charmant’s EUO testimony, defendant may not rely upon its bare representation as to what another passenger in the car, Phillipe, stated during said passenger’s EUO, in an attempt to demonstrate the existence of an issue of fact (see Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

In light of the foregoing, the order should be affirmed because plaintiff was entitled to summary judgment upon both claims.

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to reverse the order and deny plaintiff’s motion for summary judgment in the following memorandum.

I am in agreement with the majority that an untimely denial does not preclude a defendant from asserting the defense that the claimed collision was in furtherance of a scheme to defraud.

However, I disagree with the majority when they insist that the holding of the Court of Appeals in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]) requires that in order for a defendant to have a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199), the defendant must submit sworn statements establishing those findings. I submit that the Court of Appeals only requires that the defendant provide a sworn affidavit (affirmation) which establishes that the affiant has a belief which is “founded” upon information obtained by a reasonable investigation. The actual source materials uncovered by that investigation such as interviews, documents, examination under oath transcripts, etc., need not be submitted and certainly not in a form that would constitute sworn testimony. That, in my opinion, is what is going to be required at trial.

Accordingly, I dissent and vote to reverse and deny plaintiff’s motion for summary judgment.
Decision Date: February 01, 2006

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court, Bronx County (Fernando Tapia, J.), entered May 24, 2005, which denied its motion for summary judgment dismissing the complaint.

PER CURIAM:
Order (Fernando Tapia, J.), entered May 24, 2005, reversed, with $10 costs, and defendant’s motion for summary judgment is granted. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Plaintiff seeks recovery of no-fault benefits allegedly due its assignor as a result of a 2001 automobile accident. Civil Court denied defendant’s unopposed summary judgment motion, finding the existence of an unspecified “triable issue of fact.” The record reveals that neither plaintiff nor its assignor submitted written notice of the accident to defendant within the requisite 90-day period (cf. Allcity Ins. Co. v Novas, 272 AD2d 116 [2000]), nor did they submit proof that they were unable to comply with such time limitation due to circumstances beyond their control (see Medical Society of State v. Serio, 100 NY2d 854, 868 [2003]). Accordingly, defendant’s motion for summary judgment should have been granted.

We note that the court disposed of the motion without providing any explanation or reason for its decision, a practice to be avoided (see Nadle v L.O. Realty Corp., 286 AD2d 130 [2001]).

This constitutes the decision and order of the court. [*2]
Decision Date: February 01, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered December 15, 2004. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs and plaintiff’s motion for summary judgment denied.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claims within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). However, despite the untimely denials, defendant was not precluded from asserting the defense that the alleged injuries did not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [*2][1997]).

Defendant’s submissions, which included an affidavit of defendant’s claims specialist and a copy of the transcript of the examination under oath of plaintiff’s assignor, were sufficient to support its allegations of fraud, and to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since [*3]
defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied by the court below.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
JEFFREY I. RUBIN, PHD PSYC. SVCS., PC,
Assignee of ELSIE PLAISIMOND,
ELSIE PLAISMOND, ELSIE PLCUSMOND
and ELSIE PLAISMOND,

Respondent,

-against-
UTICA MUTUAL INS. CO.,

Appellant.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I disagree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: December 30, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Nassau County, Third District (Erica L. Prager, J.), entered November 23, 2004. The order, sua sponte, severed the causes of action without passing upon plaintiffs’ motion for summary judgment.

On the court’s own motion, the notice of appeal from so much of the order as, sua sponte, severed the causes of action is treated as an application for leave to
appeal, and such leave is granted (see Tilcon N.Y. v Transcontinental Ins. Co., 261 AD2d 608 [1999]).

Order unanimously modified by remanding the matter of Valery A. Berger, M.D., Assignee of Svetlana Demine v Liberty Mutual Insurance Company to the court below for a determination of said plaintiff’s motion for summary judgment; as so modified, affirmed without costs.

In or about February 2004, 11 different plaintiffs commenced this action to recover [*2]attorney’s fees and interest on 14 first-party no-fault claims, based on 14 unrelated assignors involved in accidents on 14 different dates, which defendant allegedly untimely paid. A review of the record indicates that said claims have no common contract of insurance and have no relation or similarity to each other, other than the fact that the no-fault benefits were allegedly untimely paid by defendant. Consequently, we find that the court below did not abuse its discretion in severing the causes of action in the furtherance of convenience (see CPLR 603; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]). Thus, plaintiffs’ remaining contentions are rendered academic. However, since the first cause of action relating to Valery A. Berger, M.D. remained under the original index number following severance, the court below should have determined the summary judgment motion on behalf of this plaintiff. Accordingly, the case is remanded for such a determination.
Decision Date: December 30, 2005