May 15, 2007

Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U))

Headnote

The relevant facts considered by the court involved a case where the plaintiff was seeking to recover no-fault benefits as an assignee of five individuals, with claims arising out of five separate accidents. The main issue decided was whether the defendant's motion to sever the five causes of action in the complaint into separate actions should be granted. The court held that the particular facts relating to each claim were likely to raise few, if any, common issues of law or fact, and that each claim should be severed into a separate action. The court also found that the defendant's answer, without more, placed at issue the basis for severance, and therefore, the defendant's motion to sever the causes of action should have been granted.

Reported in New York Official Reports at Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U))

Ladim DME, Inc. v GEICO Gen. Ins. Co. (2007 NY Slip Op 50997(U)) [*1]

Ladim DME, Inc. v GEICO Gen. Ins. Co.

2007 NY Slip Op 50997(U) [15 Misc 3d 139(A)]

Decided on May 15, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 15, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and GOLIA, JJ
2006-518 Q C.

Ladim DME, Inc. a/a/o Alex Nesanelis, Leonce Guhes, Robert Vacco, Martha Oliver and Gloria Pino, Respondent,
against
GEICO General Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered December 28, 2005. The order denied defendant’s motion for severance.

Order reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover no-fault benefits as assignee of five individuals. The claims allegedly arose out of five separate accidents. Defendant
moved to sever the five causes of action in the complaint into five separate actions pursuant to CPLR 603, which motion the court below denied. The instant appeal by defendant ensued.

We find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud [*2]Dists]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]). Defendant’s answer clearly places at issue with respect to each assignor, inter alia, the necessity and reasonableness of the particular medical services rendered and the sufficiency of the no-fault claim forms that have been submitted. To the extent plaintiff argued that defendant needed to proffer an affidavit from someone with personal knowledge regarding prejudice to the defendant as a result of plaintiff’s joinder of the claims, this court has consistently held that the answer, without more, places at issue the basis for severance (see S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U], supra; Metro Med. Diagnostics, P.C. v Motor Veh.
Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U], supra). Accordingly, defendant’s motion to sever the causes of action should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 15, 2007