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Severance appropriateNovember 28, 2015

Austin Diagnostic Med., P.C. v Mercury Cas. Co., 2015 NY Slip Op 51680(U)(App. Term 2d Dept. 2015)

(1)”Plaintiff commenced this action to recover first-party no-fault benefits as assignee of nine individuals. The complaint alleged separate causes of action for each assignor. Defendant moved, pursuant to CPLR 603, to sever the second through ninth causes of action into separate actions, arguing that the nine causes of action arose out of six separate motor vehicle accidents and that each of the nine causes of action involves different questions of fact and law. By order entered May 29, 2013, the Civil Court denied defendant’s motion.”

(2) “Plaintiff commenced this action to recover first-party no-fault benefits as assignee of nine individuals. The complaint alleged separate causes of action for each assignor. Defendant moved, pursuant to CPLR 603, to sever the second through ninth causes of action into separate actions, arguing that the nine causes of action arose out of six separate motor vehicle accidents and that each of the nine causes of action involves different questions of fact and law. By order entered May 29, 2013, the Civil Court denied defendant’s motion.”

(3) “defendant’s motion to sever the second through ninth causes of action into separate actions is granted”

All that is necessary is to assert through the answer that there is a different defenses and that is it.  There is no need to attach denials or to present proof that the matters involves different defenses.  But let us assume a defense moves to serve.  A Plaintiff can probably defeat the motion by attaching proof that the claim involves the same fee schedule issue or same medical necessity defense. However, standing moot will not defeat the motion.

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