Booth Med., P.C. v Eagle Ins. Co.

[*1] Booth Med., P.C. v Eagle Ins. Co. 2004 NY Slip Op 51132(U) Decided on October 4, 2004 Nassau Dist Ct Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 4, 2004
Nassau Dist Ct

BOOTH MEDICAL, P.C., a/s/o LI ZHANG; EVERGREEN CHIROPRACTIC, P.C., a/s/o LI ZHANG; FADA ACUPUNCTURE, P.C., a/s/o SIEW HEONG CHEW, LI ZHANG; LYANG ACUPUNCTURE, P.C., a/s/o MICHELLE HILLIARD Plaintiff(s)

against

EAGLE INSURANCE COMPANY, Defendant(s)



00980/04



Israel, Israel & Purdy

11 Grace Avenue, Suite 111

Great Neck, NY 11021

Law Offices of Samuel K. Rubin

PO Box 9040

Bethpage, NY 11714

Howard S. Miller, J.

Pursuant to CPLR 3212, Plaintiffs move unopposed for summary judgment on their respective claims [FN1] for statutory interest and attorneys' fees on no-fault claims that Defendant allegedly paid, but paid late. Before reaching the merits of the motion, the Court [FN2] must resolve the question of whether Plaintiffs may properly "bundle" a series of de minimis actions that are related only by the Defendant's allegedly common response to the claims underlying those actions.

In support of their position on that threshold issue, Plaintiffs cite a recent Kings County Supreme Court decision, Aviyon Medical Rehabilitation, P.C. v Allstate Insurance Co., 2004 NY Slip Op 50819(U) [Sup Ct, Kings County, Aug. 2, 2004]. That decision, however, involved only one Plaintiff, and as such it is distinguishable. The instant action more closely resembles Bender v Underwood, 93 AD2d 747 [1st Dept. 1983], a case that was distinguished by the Court in Aviyon, supra.

Analysis begins with CPLR 1002, which permits joinder of plaintiffs who assert a right to relief arising out of "the same transaction, occurrence, or series of transactions or occurrences." The question thus is whether the Defendant's allegedly common response to a series of otherwise unrelated claims can be considered to create a "series of transactions" within the meaning of CPLR 1002. On that question, the Second Department has most recently held that the answer is no. (See, Mount Sinai Hospital et al. v MVAIC, 291 AD2d 536, 738 NYS2d 247 [2d Dept 2002]; cf., Hempstead Gen. Hosp. v Liberty Mutual, 134 AD2d 569 [2d Dept 1987]). Therefore, this action would not survive a motion to sever, if the Defendant had made one.

The remaining question is whether the Court should nevertheless grant summary judgment because the Defendant has not opposed the instant motion and has made no motion to sever. On that question, some authority appears in the holding of the Nassau County Supreme Court in St. Luke's Roosevelt Hospital, et al., v Allstate Insurance Company, Sup Ct, Nassau County, Jan. 8, 2003, McCarty, J., Index No. 3936/02. In that decision, Justice McCarty denied a summary judgment motion by a similarly-bundled group of plaintiffs, on the ground that the practice of bundling enabled plaintiffs to gain access to the court system at a discounted rate, thereby depriving the courts of needed revenue. On the question of whether the added fee revenue, from splitting this action into four actions, would make up for the costs of the additional burden to the court system thereby caused, the undersigned will defer to the judgment of Justice McCarty. Justice McCarty in any event believes that the Court system has a financial interest in its own right in denying motions such as the instant one.

The undersigned is more concerned about the de minimis aspect of each of the bundled claims. Each of the claims individually, with one possible exception, is not worthy of the expenditure of public resources involved in a full civil action. The de minimis principle is a [*2]matter of public policy. The Court should not allow the policy to be circumvented by bundling a series of essentially unrelated trivial claims. A large box of trifles is still a trifling matter. In the end, each cause of action has to be adjudicated individually by the trier of fact, and if each cause of action is de minimis, the trier of fact is wasting public resources even if there might be a few economies of scale in trying a large group at once.

The Court also notes in passing that, in the event that the Defendant had raised a triable issue of fact, there probably could not be a joint trial of the claims in this action even if CPLR 1002 allowed it. That is because the Defendant's actions in one instance would probably be inadmissible, in a trial of its actions on a separate occasion, because of irrelevance and possible prejudice to the jury. Thus, there would be few, if any, economies of scale in allowing claims such as these to be bundled.

In ruling as it does, the Court is mindful of the purpose of the no-fault laws. In enacting the no-fault laws, the State Legislature clearly wanted to give insurance companies an incentive to pay no-fault claims promptly. To the extent that insurance companies are allowed to procrastinate in paying claims and not suffer the statutory penalty because it is uneconomical for plaintiffs to pursue it, the statutory purpose of the no-fault laws may be frustrated.

The answer lies in a legislative or regulatory solution, however, not in a judicial solution that permits medusan lawsuits. One such legislative solution might be an amendment to the Commercial Claims provisions of Article 18-A of the Uniform District Court Act, to allow no-fault claims under a certain amount to be pursued as commercial claims. If a particular insurance company is engaged in a persistent course of such conduct, a class action might also be in order.

In the meantime, the motion for summary judgment is denied on the grounds that the action is based on a series of de minimis claims that may not be joined under CPLR 1002. The Plaintiff is given leave to move to sever all Plaintiffs except for Lyang Acupuncture, P.C., and to renew the motion for summary judgment as to that Plaintiff.

So Ordered. Footnotes

Footnote 1:The claims respectively are $81, $76, $56, $18, $18, and $209 (the latter on behalf of Lyang Acupuncture, P.C.).

Footnote 2:as it advised Plaintiff's counsel on the return date of the motion