Opinion
November 19, 1992
Appeal from the Supreme Court, New York County (David B. Saxe, J.).
Severance of the third-party action against third-party defendants, an insurance broker and his agency, for negligence and malpractice resulting from the insolvency of the first of two excess carriers was proper as a joint trial would result in substantial prejudice (see, Kelly v Yannotti, 4 N.Y.2d 603, 607). The severing of negligence actions from insurance coverage actions applies to brokers and agents as well as to insurance companies (see, Johnson v Berger, 171 A.D.2d 728). Although the motion was brought pursuant to CPLR 1010, the court did not err in basing its finding not only upon substantial prejudice, but also on the lack of a common question of law or fact under CPLR article 6 which is also pertinent to the propriety of a single trial for a main and third-party action (see, 2 Weinstein-Korn-Miller, N Y Civ Prac ¶¶ 603.14, 1010.05).
Concur — Carro, J.P., Rosenberger, Wallach and Ross, JJ.