October 18, 2019

Clarke v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51708(U))

Headnote

The court considered the motion to sever the first cause of action seeking to recover upon a claim for services rendered to Shavkat Djalilov from the remaining cause of action in an action by a provider to recover first-party no-fault benefits assigned to it by two assignors. The main issue decided was whether the first cause of action should be severed from the remaining causes of action. The holding of the court was that the motion to sever the first cause of action from the remaining cause of action should have been granted, as the claims arose out of two separate accidents which occurred on two different dates, and the facts relating to each claim were likely to raise few, if any, common issues of fact. Therefore, the order of the Civil Court denying defendant's motion to sever the first cause of action was reversed, and defendant's motion to sever the first cause of action from the remaining causes of action was granted.

Reported in New York Official Reports at Clarke v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51708(U))

Clarke v Global Liberty Ins. Co. of N.Y. (2019 NY Slip Op 51708(U)) [*1]

Clarke v Global Liberty Ins. Co. of N.Y.

2019 NY Slip Op 51708(U) [65 Misc 3d 141(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2018-1630 K C

Colin Clarke, M.D., P.C., as Assignee of Shavkat Djalilov and Davron Khuseynov, Respondent,
against
Global Liberty Insurance Company of New York, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum 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 June 22, 2018. The order denied defendant’s motion to sever the first cause of action seeking to recover upon a claim for services rendered to Shavkat Djalilov from the remaining cause of action.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion to sever the first cause of action from the remaining cause of action is granted.

In this action by a provider to recover first-party no-fault benefits assigned to it by two assignors, defendant appeals from an order of the Civil Court which denied defendant’s motion pursuant to CPLR 603 to sever the first cause of action seeking to recover upon a claim for services rendered to Shavkat Djalilov from the remaining causes of action.

The complaint alleges that the claims arose out of two separate accidents which occurred on two different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that the facts relating to each claim are likely to raise 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 first cause of action from the remaining cause 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 2012]).

Accordingly, the order is reversed and defendant’s motion to sever the first cause of action from the remaining causes of action is granted.

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

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