Opinion
May 17, 1999
Appeal from the Supreme Court, Nassau County (O'Connell, J.).
Ordered that the order is reversed, with one bill of costs, and the motion is denied.
The plaintiff, individually, brought Action No. 1 to recover the insurance proceeds from American Bankers Insurance Company and Bankers American Life Assurance Co. for the alleged accidental death of her husband immediately after a chemical spill at his place of employment. The plaintiff, as administrator of her deceased husband's estate, brought Action No. 2 to recover damages for his wrongful death, alleging that his physician and his associates were negligent in rendering treatment. The same action alleged that the chemical manufacturer was liable under a theory of strict products liability. Certain defendants in Action No. 2 commenced a third-party action asserting negligence claims against the decedent's employer and sought contribution, reimbursement, and/or indemnification if a judgment were to be entered against them.
Upon motion, the power to order consolidation or a joint trial rests in the sound discretion of the court ( see, McDutchess Bldrs. v. Dutchess Knolls, 244 A.D.2d 534), where common questions of law or fact exist, absent prejudice to a substantial right of the opposing party ( see, Stephens v. Allstate Ins. Co., 185 A.D.2d 338). However, despite the common issue of fact shared by the actions, under all the circumstances, the issues and applicable legal principles in the respective actions are so dissimilar ( see, Gouldsbury v. Dan's Supreme Supermarket, 138 A.D.2d 675), and the trial may prove so unwieldy ( see, Barbilex Assocs. v. Pesaitis, 113 Misc.2d 436), that consolidation or a joint trial will result in jury confusion and prejudice the right of the appealing parties to a fair trial ( see, Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479. Thus, we conclude, that the order appealed from was an improvident exercise of discretion ( see, Berman v. Greenwood Vil. Community Dev., 156 A.D.2d 326).
S. Miller, J. P., Sullivan, Joy and Altman, JJ., concur.