In a typical no-fault trial, the judge, or indeed the parties themselves, may seek to hash out those elements of the respective parties’ case that are not disputed, such as the plaintiff’s prima facie submission and non-payment of its claims and the defendant insurer’s prima facie proof of timely denial thereof. Thus, typically, the trial will proceed only on the basis for the denial, such as the insurer’s allegation that the services were not medically necessary, as set forth in a peer review report or independent medical examination report. Of course, the parties can voluntarily stipulate to such undisputed facts, but such stipulations, if any, do not ordinarily arise until the day of trial. What happens when the court, during motion practice, seeks to limit the issues for trial? The answer lies in CPLR §3212(g), which provides:

Limitation of issues of fact for trial. If a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible. It shall thereupon make an order specifying such facts and they shall be deemed established for all purposes in the action. The court may make any order as may aid in the disposition of the action.

A related provision, CPLR §3212(e), provides:

Partial summary judgment; severance. In a matrimonial action summary judgment may not be granted in favor of the non-moving party. In any other action summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just. The court may also direct: 1. that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action; or 2. that the entry of the summary judgment shall be held in abeyance pending the determination of any remaining cause of action.

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