Summary
In Coakley, because of a prior judicial determination, there was no question but that there could be no recovery against the lost defendant, whereas, here, there has been no determination that plaintiff has lost the causes of action not asserted in action No. 1, nor even an explanation as to why they might be lost.
Summary of this case from Martire v. City of New YorkOpinion
March 13, 1992
Appeal from the Supreme Court, Monroe County, Curran, J.
Present — Denman, P.J., Green, Pine, Balio and Fallon, JJ.
Order unanimously reversed on the law with costs and motion granted. Memorandum: Plaintiffs commenced a medical malpractice action in April 1988, naming as defendants Rochester General Hospital, Dr. William Africano, and Dr. Donald Gabel. The action was dismissed against Gabel as a result of the failure of plaintiffs' former attorneys to comply with an order of preclusion (see, Coakley v Gabel, 158 A.D.2d 954, lv dismissed 76 N.Y.2d 931, rearg denied 76 N.Y.2d 1018). Plaintiffs retained new counsel who maintained the medical malpractice action against the remaining defendants and commenced a legal malpractice action against plaintiffs' former attorneys. Supreme Court denied plaintiffs' motion for a joint trial of their medical malpractice and legal malpractice actions. We conclude that the court erred in denying plaintiffs' motion.
"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all [of] the matters in issue" (CPLR 602 [a]). Although courts are granted considerable discretion in determining a motion for a joint trial, "the interests of justice and judicial economy are better served by joint trials wherever possible" (Megyesi v Automotive Rentals, 115 A.D.2d 596; see, Import Alley v Mid-Island Shopping Plaza, 103 A.D.2d 797, 798). Inasmuch as plaintiffs, in order to prevail in their legal malpractice action, must establish that Dr. Gabel committed medical malpractice, plaintiffs have sustained their initial burden of demonstrating that the actions contain common issues of law and fact (cf., Business Council v Cooney, 102 A.D.2d 1001, 1002). Defendants' conclusory assertion that a joint trial would confuse the trier of fact is unsupported on the record and insufficient to demonstrate prejudice to a substantial right.