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Appellate Term fiction



Colin Clarke, M.D., P.C. v MVAIC, 2021 NY Slip Op 50729(U)(App. Term 2d Dept 2021)

(1) “The complaint alleges that the claims arose out of six separate accidents which occurred on six different dates.”

(2) “A review of the denial of claim forms, explanations of review and correspondence 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 Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]). Indeed, under the facts of this case, an extraordinary number of defense witnesses would be required at a single trial of all six claims. As a result, defendant’s motion to sever the causes of action should have been granted (see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536; 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]).”

Sentence number one comes from Mount Sinai and ends the inquiry. Sentence number two is a make believe addition that the new law clerks at the Appellate Term added to the severance inquiry. The reality is who wants to take up to the App. Div whether sentence (2) is a correct statement of law?

I for one do not think the App. Div. will grant leave to answer that esoteric question. But they really should because the no-fault rule, outside the third department, is no multi-suits unless it is the same accident or plaintiff pleads or can show common elements, i.e, same FS reduction, same coverage defense (probably provider based).

I just think the Court is wrong in their thinking on this issue.