Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co., 2018 NY Slip Op 51785(U)(App. Term 2d Dept. 2018)
“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 50 [*2]defenses in its answer, these two facts, standing alone, do not demonstrate that resolution of the claims for services rendered to plaintiff’s assignors 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.”
I swear there must be a different law clerk on the 15th floor who is writing these decisions. But the real losers here will be the court system and the tax payers because now the cost to prosecute these cases decreases and the cost to defend and to process the matters increases. Also, this decision goes against prior Appellate Term rulings and decisions from 3 of the 4 Appellate Divisions.
I wish the Court would be more honest and cite the two Third Department cases that are on point. Instead, they cite an 11 year old Appellate Term case that requires a quantum of proof the Appellate Divisions never held was required to sustain a severance motion.
Now, there is one judge on the panel who lived through the old Sanders Grossman multi-suits as a Civil Court Judge. I recall she was never a fan of the multisuits, but of course we are going back a decade. I await to see if she signs on to these de facto per curiam opinions.
Incidentally, of the Plaintiff produced evidence in their opposition of commonality, i.e., same fee schedule issue, or same medical necessity defense, then I wold hold that severance would be improper. But I think in these PIP actions, the Court is reversing the burden of production.