December 30, 2005

Berger v Liberty Mut. Ins. Co. (2005 NYSlipOp 52204(U))

Headnote

The relevant facts the court considered were that 11 plaintiffs were seeking to recover attorney's fees and interest on 14 first-party no-fault claims from Liberty Mutual Insurance Company. The claims were based on 14 unrelated assignors involved in accidents on 14 different dates, with no common contract of insurance between the claims. The main issue before the court was whether the causes of action should be severed, and if the court below should have determined the summary judgment motion on behalf of one of the plaintiffs. The holding of the case was that the court did not abuse its discretion in severing the causes of action for the sake of convenience, and the case was remanded for the court below to determine the summary judgment motion on behalf of one of the plaintiffs.

Reported in New York Official Reports at Berger v Liberty Mut. Ins. Co. (2005 NYSlipOp 52204(U))

Berger v Liberty Mut. Ins. Co. (2005 NYSlipOp 52204(U)) [*1]

Berger v Liberty Mut. Ins. Co.

2005 NYSlipOp 52204(U)

Decided on December 30, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOPLH, P.J., McCABE and TANENBAUM, JJ
2005-251 N C.

VALERY A. BERGER, M.D. ASSIGNEE OF SVETLANA DEMINE; CLASSICAL PSYCHIATRIC CARE, PC ASSIGNEE OF NICOLE LINO; OSIA LITTLE; CONTINENTAL MEDICAL, P.C. ASSIGNEE OF LABAN AMBROSE; DRIVAS MEDICAL CARE, P.C. ASSIGNEE OF RICHARD HEYWOOD; PAUL SMITH; ENGLINTON MEDICAL, P.C. ASSIGNEE OF CESAR GARCIA; FADA ACUPUNCTURE, P.C. ASSIGNEE OF XIU QING QI; LAOGONG ACUPUNCTURE, P.C. ASSIGNEE OF PETER WASSEF; NYC EAST-WEST ACUPUNCTURE, P.C. ASSIGNEE OF ZHEN KANG WU; PRIMARY PSYCHIATRIC HEALTH, P.C. ASSIGNEE OF JEAN TELLUS; PROFESSIONAL ACUPUNCTURE, P.C. ASSIGNEE OF PEDRO LUCAS; PATRICIA TURNER; SANLI ACUPUNCTURE PC ASSIGNEE OF GLEB STEPANOV, Appellants,
against
LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

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