May 18, 2018

City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U))

Headnote

The court considered a motion to sever a cause of action in a case brought by City Chiropractic, P.C. seeking to recover first-party no-fault benefits for services rendered to two assignors. Defendant argued for severance based on the assertion that the causes of action arose from two different accidents and that multiple defenses had been interposed in the answer. The issue decided was whether the claims involving services rendered to two different individuals should be severed into separate causes of action. The court held that the denial of defendant's motion to sever the cause of action seeking to recover upon a claim for services rendered to Victoria A. Lliguichuzhca from the remaining cause of action was an exercise of judicial discretion and should not be disturbed on appeal, as the record did not establish that the denial was an improper exercise of discretion. The order to deny defendant's motion to sever was affirmed.

Reported in New York Official Reports at City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U))

City Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 50730(U)) [*1]

City Chiropractic, P.C. v Auto One Ins. Co.

2018 NY Slip Op 50730(U) [59 Misc 3d 144(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 18, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-1618 K C

City Chiropractic, P.C., as Assignee of Victoria A. Lliguichuzhca and Taysha Tuesca, Respondent,
against
Auto One Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Zara Javakov, P.C (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered March 16, 2015. The order denied defendant’s motion to sever a cause of action seeking to recover upon a claim for services rendered to Victoria A. Lliguichuzhca from the remaining cause of action.

ORDERED that the order is affirmed, with $25 costs.

The complaint in this action by a provider to recover assigned first-party no-fault benefits seeks to recover for services that had been rendered to two assignors. Defendant moved, pursuant to CPLR 603, to sever a cause of action seeking to recover upon a claim for services rendered to Victoria A. Lliguichuzhca from the remaining cause of action, which sought to recover upon a claim for services rendered to Taysha Tuesca. Defendant’s counsel asserted that the causes of action had arisen out of two different accidents and that multiple defenses had been interposed in the answer. The Civil Court denied defendant’s motion as premature, stating that defendant had not annexed the denial of claim forms for the claims at issue and that defendant had failed to establish that the claims involved different questions of fact and law.

The decision to grant severance (see CPLR 603) is an exercise of judicial discretion which, in the absence of a party’s showing of prejudice to a substantial right, should not be disturbed on appeal (see King’s Med. Supply, Inc. v GEICO Cas. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50232[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]). In the instant matter, while the assignors were injured in separate accidents and defendant interposed 48 defenses in its answer, these two facts do not demonstrate that resolution of the claims for services rendered to Victoria A. Lliguichuzhca and Taysha Tuesca will involve different questions of fact and law. As such, the record does not establish that the Civil Court’s denial of defendant’s motion was an improvident exercise of discretion.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 18, 2018