Well, I lost five of these recently I think. I stopped keeping track. What you may not know is that I sought leave to appeal to the Second Department of the last three cases. Leave was denied. But, I think a phone call was made to someone.
Case #1:
Westchester Radiology & Imaging, P.C. v GEICO Cas. Co., 2019 NY Slip Op 51703(U)(App. Term 2d Dept. 2019)
“The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates and the denial of claim forms indicate that the claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor. Therefore, there are likely to be few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2012]). “
In this instance, same MVA is not even relevant. The claims at issue were denied on the ground of lack of medical necessity, an issue which is inherently distinct to each assignor.”
Case #2:
Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co., 2019 NY Slip Op 51704(U)(App. Term 2d Dept. 2019)
” The complaint alleges that the claims arose out of four separate accidents which occurred on four different dates. The facts relating to each claim are therefore likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “
Here, severance is based on the traditional notion: multiple accidents, therefore, severance is appropriate.
Case #3:
Arcadia Acupuncture, P.C. v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51707(U)(App. Term 2d Dept. 2019)
“The complaint alleges that the claims arose out of three separate accidents which occurred on three different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that facts relating to each claim are likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining causes of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). “
The answer, denials and EOBs show that few common issues of fact will exist. Severance granted.
Case #4:
Clarke v Global Liberty Ins. Co. of N.Y., 2019 NY Slip Op 51708(U)(App. Term 2d Dept. 2019)
“The complaint alleges that the claims arose out of two separate accidents which occurred on two different dates. A review of the answer, denial of claim forms, and explanations of review pertaining to the claims at issue, reflects that the facts relating to each claim are likely to raise few, if any, common issues of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). As a result, defendant’s motion to sever the first cause of action from the remaining cause of action should have been granted (see Maria Oca, M.D., P.C. v MVAIC, 35 Misc 3d 134[A], 2012 NY Slip Op 50758[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Two accidents, two Assignors, two different proofs. Severance is appropriate.
