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Civil Court, City of New York.

COLIN CLARKE, MD PC. a/a/o Ariel Burgos, Abner Hidalgo, Yolanda Jemison, Sheldon Lewis, Joshua Martinez, Roza Yefremenko, Plaintiff, v. MVAIC, Defendants.


Decided: May 15, 2019

Petre and Zabokritsky, P.C., Brooklyn, for petitioner. Marshall and Marshall, PLLC., Jericho, for respondent.








Defendant moves This Honorable Court by Notice of Motion pursuant to CPLR 603, Opposed, for an Order Severing six causes of actions of Plaintiff's Complaint to five separate actions and for such other and further relief deemed just and proper. For the reasons set forth below, Defendant's motion is DENIED.


Plaintiff as a health service provider, brought this action by way of summons and complaint to recover No-Fault benefits as assignee for each of six assignors. All six assignors were each covered under a uniform policy of insurance issued by the same insurance company, Defendant MVAIC 1 . Action commenced on November 13, 2017 by the filing of summons and complaint along with “Affirmation In Support of Joinder of Multiple Plaintiffs or Assigned Claims” pursuant to CPLR 601(a) and CPLR 1002, stating “Action is commenced in the interest of judicial economy and would be the least burdensome upon this Court and the parties” dated August 29, 2017. Complaint consistently alleges, in each of six different causes of actions, that MVAIC is statutorily the No-Fault insurance provider in each of these six causes of actions. Plaintiff alleges that medical services were provided, bills submitted for payment, MVAIC failed to pay and payment is unpaid and past due pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (1). Each assignor was injured in an auto accident: First Cause of Action for Ariel Burgos with day of accident on June 20, 2015 seeking $ 889.61; Second Cause of Action for Abner Hidalgo with day of accident on January 10, 2014 seeking $ 71.49; Third Cause of Action for Yolanda Jemison with day of accident on April 3, 2015 seeking $ 1,811.15; Fourth Cause of Action for Sheldon Lewis with day of accident on February 6, 2016 seeking $ 182.18; Fifth Cause of Action for Joshua Martinez with day of accident on October 27, 2015 seeking $ 500.15; and Sixth Cause of Action with day of accident on April 9, 2015 seeking $ 2,057.99, which cumulatively is $ 5,512.93, the judgment amount being sought.

Issue was joined on January 24, 2018 upon defendant filing Answer with the clerk of court. Defendant's instant Motion to Sever was filed May 8, 2018 for return date of May 29, 2018. On May 29, 2018, Motion to Sever was adjourned to April 17, 2019. After oral argument on April 17, 2019 court reserved decision on motion for severance.


Severance and joinder are statutorily within the ambit of judicial discretion, of which in the absence of a showing of abuse of discretion or prejudice to a substantial right, will not be disturbed on appeal (King's Med. Supply Inc. v. Geico Cas. Ins. Co., 14 Misc 3d 136 [A] 2007 NY Slip Op 50232 [U]; Anderson v. Singh, 305 AD2d 620, 759 NYS 2d 683 [2d Dept 2003]; Finning v. Niagara Mohawk Power Corp., 281 AD2d 844, 722 NYS 2d 613 [3d Dept 2001]; Aviyon Medical Rehabilitation v. Allstate Insurance Co., 4 Misc 3d 1011[A], 791 NYS 2d 867, 2004 NY Slip Op 50819[U] [Sup Ct, Kings County 2004]. The exercise of judicial discretion in joinder or severance requires considerations of public policy, legislative history and intent as to judicial efficiency, judicial economy and cost benefit analysis with proscribed due process constraints and limitations to ensure no denial of substantial rights to neither party. Pursuant to CPLR 1002 (a), joinder of claims or causes of action is proper where claims arise out of a uniform contract of insurance and involve the interpretation of the same no-fault provisions of the Insurance Law (Hempstead Gen. Hosp. v. Liberty Mut. Ins. Co., 134 AD2d 569, 521 NYS 2d 469 [2d Dept 1987]; NYU-Hosp. for Joint Diseases v. Unitrin Direct Prop. & Cas. Co., 2012 NY Misc LEXIS 783, *5-6, 2012 NY Slip Op 30421 [U], 3-4; Mary Immaculate Hosp.-Caritas Health Care v. Government Empl. Ins. Co., 2009 NY Misc LEXIS 6458, *1-2, 2009 NY Slip Op 33183 [U] ). The New York State statutory mandates for joinder and severance are found in the following laws:

CPLR 1002 :

(a) Plaintiffs. Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction, occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise.

(b) Defendants. Persons against whom there is asserted any right to relief jointly, severally, or in the alternative, arising out of the same transaction, occurrence, or series of transactions or occurrences, may be joined in one action as defendants if any common question of law or fact would arise.

(c) Separate relief; separate trials. It shall not be necessary that each plaintiff be interested in obtaining, or each defendant be interested in defending against, all the relief demanded or as to every claim included in an action; but the court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom he asserts no claim and, who asserts no claim against him, and may order separate trials or make other orders to prevent prejudice.

CPLR 601:

(a) The plaintiff in a complaint or the defendant in an answer setting forth a counterclaim or cross-claim may join as many claims as he may have against an adverse party. There may be like joinder of claims when there are multiple parties.

(b) Two or more plaintiffs may join no more than five claims in any one action or proceeding against the same defendant arising out of separate consumer credit transactions, provided that the plaintiffs are represented by the same attorney.

CPLR 602:

Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

CPLR 603:

In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others.

Overall tenor of these statutes is the liberal joinder of parties where common questions of law and/or fact would arise pursuant to CPLR 1002 (a), with the goal to prevent multiplicity of suits to avoid taxing the already inundated court system while ensuring that neither party is denied its due process guarantees in its sought after relief or mounting its defense (Saunders v. Saunders, 54 Misc 2d 1081, 283 NYS 2d 969 [Sup Ct, Kings County 1967]). “It is also intended to reduce the caseload of the courts and its personnel and avoid unnecessary expenditure of time, money and manpower” (Aviyon Medical Rehabilitation v. Allstate Insurance Co., 4 Misc 3d 1011 [A], 791 NYS 2d 867, 2004 NY Slip Op 50819 [U] (Sup Ct, Kings County 2004). Clearly, CPLR 1002 (c) states that all relief demanded, nor every claim need not be in absolute sync and CPLR 601 (a) goes even further to more liberally provide for the joinder of as many claims as a party may assert against an adverse party. “Persons who assert any right to relief jointly, severally, or in the alternative arising out of the same transaction or occurrence, or series of transactions or occurrences, may join in one action as plaintiffs if any common question of law or fact would arise” (Collins v. Telcoa Intern. Corp., 283 AD2d 128, 131, 726 NYS 2d 679 (2d Dept 2001); CPLR 1002 [a]). The sole explicit statutory limitation and restriction exception for specific substantive claims is found in CPLR 601 (b) for consumer credit transactions. CPLR 602 explicitly further vests discretion to the court for consolidation of like claims. Although CPLR 1002 (c) explicitly also provides for the court's discretion towards joinder, it endows the court with fail safe contingencies in favor of severance as against joinder, where said joinder may delay, embarrass or cause expense. More so explicit as for severance as against joinder, CPLR 603 provides within the court's discretion to order severance of claims or separation of trials to ensure that no party is prejudiced nor inconvenienced by joinder. It is upon CPLR 603 that Defendant in the instant matter relies for its prayed for equitable relief of severance.

In this regard, Defendant's reliance on Mount Sinai in the application for CPLR 603 severance is indeed misplaced (Mount Sinai Hospital a/a/o Jefferson v. MVIAC, 291 AD2d 536, 738 NYS 2d 247 [2d Dept 2002]). In Mount Sinai, there were five distinct plaintiffs as assignees, each plaintiff having different assignors for first party no fault medical treatment payments where there was found no common contract of insurance and no other common link beyond that no-fault payments were billed but not paid by defendant insurer. The instant matter herein is distinguished in several material respects. There is a sole medical provider assignee as Plaintiff herein. The relief sought is not by the six assignors individually but rather by one plaintiff with one itemized bill for reimbursement for medical services rendered to six different assignors payable by one defendant-insurer which is responsible for paying for said reimbursements for medical service to the plaintiff. Arguendo, indeed, such a single itemized bill from plaintiff may likewise be paid in a single itemized check by insurer made payable to plaintiff-assignee for services rendered to all six assignors. Therefore, even though there are six different assignors with different dates of accident is of no consequence here. In Hempstead, the seminal case concerning joinder as against severance of multiple claims, there were 29 assignors but one sole plaintiff-assignee under the same contract of insurance and after due consideration, Appellate Division, Second Department upheld said joinder and denied severance pursuant to CPLR 1002 (a) (Hempstead General Hospital v. Liberty Mutual Ins. Co., 134 AD2d 569, 521 NYS 2d 469 [2d Dept 1987]). More so compelling against severance in this instant matter, there are but a mere six assignors, which pales in comparison to Hempstead's 29, to whom one sole plaintiff-assignee provider rendered medical services to all six assignors and is seeking the same relief in law from one defendant no fault insurer under the same no fault insurance contract pursuant to Insurance Law Article 51, No-Fault Comprehensive Motor Vehicle Insurance Reparations Act of the New York State Article.

Defendant's argument that it is inconvenienced or prejudiced by the joinder of the six assignors into one case for the same plaintiff-assignee and same no-fault insurer defendant is not compelling. There is no added burden to defendant under the circumstances here. Rather, severance in this instant matter would result in unnecessarily burdensome multiplicity of suits and increased costs to the courts and the parties with no perceived corresponding benefit. Here, severance results in disproportionately negative cost benefit analysis. Public policy and legislative history of the statutes governing joinder as against severance strongly favor joinder and only in extreme cases where no nexus of commonality to law and facts should severance prevail. Although the facts of each cause of action per assignor herein may be different as to dates and times of respective auto accident, nevertheless, each involves the same no-fault medical provider, the same no-fault insurance company, the same no-fault insurance contract, and same no-fault law. Severance would not only increase costs exponentially with no corresponding benefit to seek the same relief by the same parties as already being sought in this joined single case, but it further delays the resolution of the same matters burdening the courts with no corresponding benefit and no loss of substantial due process rights to neither party. Defendant has failed to submit any proof or documentary evidence to demonstrate otherwise.

For the foregoing reasons, Defendant's Motion for Severance is DENIED.

This constitutes the opinion, decision, and order of This Honorable Court.


1.   MVAIC is a quasi-government not-for-profit statutorily created in 1958 by the New York State Legislature by enactment of Article 17-A (now Article 52) of the New York Insurance Law. MVAIC operates to provide No-Fault and Bodily Injury coverage to those uninsured claimants that are deemed eligible for benefits.

Sandra E. Roper, J.

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