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

Appellate Terms of the Supreme Court of New York

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

Appellate Terms of the Supreme Court of New York·Decided October 18, 2019·No. 2019 NYSlipOp 51703(U)·Published

Opinion

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

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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

Westchester Radiology & Imaging, P.C. v. GEICO Cas. Co., (N.Y. Ct. App. 2019).

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