ANDREW CAROTHERS v. GEICO INDEMNITY CO

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Supreme Court, Appellate Term, New York.

ANDREW CAROTHERS, M.D., P.C. a/a/o Sulman Samdani, Marlene Rivers, Richard Taylor, Kevin Hall & Alexis Rodriguez, Respondent, v. GEICO INDEMNITY CO., Appellant.

Decided: January 31, 2007

Present:  PESCE, P.J., RIOS and BELEN, JJ. Teresa M. Spina, Woodbury (Lawrence J. Chanice of counsel), for appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 4, 2006.   The order denied defendant's motion to sever five causes of action.

Order reversed without costs and defendant's motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover the sum of $4,429.85 in first-party no-fault benefits, as assignee of five individuals who were injured in five separate motor vehicle accidents.   Defendant insurance company moved for severance of the causes of action, arguing that there are five separate and distinct claims involving different questions of fact and law.   Plaintiff maintained that four of the claims were denied for the same reason, lack of medical necessity, and that four of the five claims sought payment for the same type of treatment.   The fifth claim was settled during the course of litigation.

The court below denied defendant's motion.

Defendant's motion to sever should have been granted.   The denials of the claims were based on different peer reviews, which could result in testimony at trial from four different doctors on the issue of medical necessity.   A single trial involving different sets of facts regarding the underlying accidents, injuries and nature and costs of services would pose the danger of being unwieldy and confusing.   Accordingly, the actions should be severed (see Mount Sinai Hosp. v. Motor Veh. Acc. Indem. Corp., 291 A.D.2d 536, 738 N.Y.S.2d 247 [2002];  S.I.A. Med. Supply Inc. v. GEICO Ins. Co., 8 Misc.3d 134(A), 2005 N.Y. Slip Op. 51170[U], 2005 WL 1713569 [App. Term, 2d & 11th Jud. Dists.] ).