Rite Aid Med. Supply Corp. v. N.Y. Cent. Mut. Fire Ins. Co., 2019-1334 K C

CourtNew York Supreme Court — Appellate Term
Citation155 N.Y.S.3d 524 (Table),73 Misc.3d 138 (A)
Docket Number2019-1334 K C
Parties RITE AID MEDICAL SUPPLY CORP., as Assignee of Joe Chaluisant and Robert Murray, Respondent, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.
Decision Date19 November 2021

73 Misc.3d 138 (A)
155 N.Y.S.3d 524 (Table)

RITE AID MEDICAL SUPPLY CORP., as Assignee of Joe Chaluisant and Robert Murray, Respondent,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.

2019-1334 K C

Supreme Court, Appellate Term, New York, Second Dept., 2, 11, 13 Jud. Dist.

Decided on November 19, 2021


Nightingale Law, P.C. (Michael S. Nightingale of counsel), for appellant.

The Law Offices of Florence D. Zabokritsky, PLLC, for respondent (no brief filed).

PRESENT: DAVID ELLIOT, J.P., MICHELLE WESTON, DONNA-MARIE E. GOLIA, JJ.

ORDERED that the order is reversed, with $30 costs, and defendant's motion to sever the claim of each assignor into separate actions is granted.

In this action by a provider to recover first-party no-fault benefits assigned to it by two assignors, defendant appeals from an order of the Civil Court which denied defendant's motion pursuant to CPLR 603 to sever the cause of action seeking to recover upon a claim for supplies furnished to Joe Chaluisant from the remaining cause of action seeking to recover upon a claim for supplies furnished to Robert Murray. Defendant's counsel asserted that the claims had arisen out of two different accidents and that defenses relating to each claim differed. The Civil Court denied defendant's motion.

While 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 Majestic Acupuncture, P.C. v Interboro Mut. Ins. Co. , 61 Misc 3d 152[A], 2018 NY Slip Op 51785[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; City Chiropractic, P.C. v Auto One Ins. Co. , 59 Misc 3d 144[A], 2018 NY Slip Op 50730[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; 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 this instance, severance is warranted.

The complaint alleges that the claims arose out of separate accidents which occurred on different dates. The record further reveals that while one claim was denied on the ground...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT