Opinion
2014-03806, Index No. 700446/12.
11-15-2017
Nelson POALACIN, plaintiff, v. MALL PROPERTIES, INC., et al., defendants/second third-party plaintiffsrespondents, et al., defendant; Harleysville Insurance, second third-party defendant-appellant (and other third-party actions).
Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Lori A. Donnelly of Counsel), for second third-party defendant-appellant.
Milber Makris Plousadis & Seiden, LLP, Woodbury, NY (Lori A. Donnelly of Counsel), for second third-party defendant-appellant.
Appeal from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered March 5, 2014. The order, insofar as appealed from, denied the motion of the second third-party defendant to sever the second third-party action.
ORDERED that the order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and the motion of the second third-party defendant to sever the second third-party action is granted.
The Supreme Court improvidently exercised its discretion in denying the motion of the second third-party defendant, Harleysville Insurance (hereinafter Harleysville), to sever the second third-party action from the main action and the other third-party actions in this matter. "It is generally recognized that, even where common facts exist, it is prejudicial to insurers ‘to have the issue of insurance coverage tried before the jury that considers the underlying liability claims' " ( Medick v. Millers Livestock Mkt., 248 A.D.2d 864, 865, 669 N.Y.S.2d 776, quoting Schorr Bros. Dev. Corp. v. Continental Ins. Co., 174 A.D.2d 722, 722, 573 N.Y.S.2d 874 ; see Christensen v. Weeks, 15 A.D.3d 330, 331, 790 N.Y.S.2d 153 ). In light of the differing issues raised in the main action and second third-party action, and the potential prejudice to Harleysville stemming from the joint trial of those actions, severance of the second third-party action was warranted (see Christensen v. Weeks, 15 A.D.3d at 331, 790 N.Y.S.2d 153 ; Golfo v. Loevner, 7 A.D.3d 568, 777 N.Y.S.2d 159 ; see also Burlington Ins. Co. v. Guma Constr. Corp., 66 A.D.3d 622, 625, 887 N.Y.S.2d 177 ).
DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.