May 17, 2006

Ocean Diagnostics Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50913(U))

Headnote

The court considered the plaintiff's action to recover first-party no-fault benefits as the assignee of 11 alleged injured persons, arising from 11 separate accidents. The defendant failed to timely answer, and a default judgment was entered, after which the defendant moved to vacate the default judgment and sever the causes of action. Plaintiff also cross-moved for summary judgment. The main issue decided was whether the court below properly exercised its discretion in granting defendant's motion to sever plaintiff's causes of action and in denying plaintiff's cross motion for summary judgment. The holding of the case was that the court below properly exercised its discretion in granting defendant's motion to sever plaintiff's causes of action, as the defenses raised by the defendant were likely to raise few, if any, common issues of law or fact, even if the assignors' insurance policies were identical, and the plaintiff's cross motion for summary judgment was properly denied.

Reported in New York Official Reports at Ocean Diagnostics Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50913(U))

Ocean Diagnostics Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 50913(U)) [*1]

Ocean Diagnostics Imaging P.C. v State Farm Mut. Auto. Ins. Co.

2006 NY Slip Op 50913(U) [12 Misc 3d 127(A)]

Decided on May 17, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1170 K C.

Ocean Diagnostics Imaging P.C., a/a/o Kevin Johnson, Felix Gofman, Isabel Phillips, Faith Bland, Pierre Hiliance, Leecal Darius, Dmitry Khapchik, Rouslan Bobokalonov, Tyrone Noel, Jermaine James and Marcia Worrell, Appellant,
against
State Farm Mutual Automobile Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Donald S. Kurtz, J.), entered May 24, 2005. The order, insofar as appealed from, granted defendant’s motion for severance and denied plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

Plaintiff commenced this action to recover first-party no-fault benefits as the assignee of 11 alleged eligible injured persons. The claims arose out of 11 separate accidents. Defendant failed to timely answer, and a default judgment was subsequently entered. Defendant moved to vacate the default judgment and sever the causes of action. Plaintiff subsequently cross-moved for summary judgment. Thereafter, by order dated May 24, 2005, the court granted that part of defendant’s motion seeking severance of the causes of action, denied, as moot, that part seeking vacatur of the default judgment “in that plaintiff has consented to vacate the default judgment,” and denied plaintiff’s cross motion for summary judgment “as it was filed in violation of a stay imposed by order to show cause dated August 24, 2004.” The instant appeal by plaintiff ensued.

A review of the record indicates that defendant’s answer clearly places at issue, inter alia, whether there was fraud as to the accidents and the necessity and reasonableness of the medical services rendered. We find that these defenses are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical. Accordingly, the court below providently exercised its discretion in granting defendant’s motion to sever plaintiff’s causes of action (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 [*2]Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud 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]). In view of the foregoing, plaintiff’s cross motion for summary judgment was properly denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: May 17, 2006