Opinion
21320/2018E
10-04-2019
Frank MARZAN, Plaintiff, v. Marilyn J. LEVINE, Defendant.
Eric J. Gottfried, Esq., Pena & Kahn, PLLC, Bronx, NY, for plaintiff Jeffrey S. Dorman, Esq., Hagelin Spencer, LLC, Jersey City, NJ, for defendant
Eric J. Gottfried, Esq., Pena & Kahn, PLLC, Bronx, NY, for plaintiff
Jeffrey S. Dorman, Esq., Hagelin Spencer, LLC, Jersey City, NJ, for defendant
John R. Higgitt, J. On November 12, 2017, plaintiff was involved in an accident in or near a Manhattan intersection that caused him to sustain significant personal injuries. According to plaintiff, defendant, a pedestrian, stepped into the bicycle lane in which plaintiff was riding his bicycle, causing plaintiff to maneuver abruptly to avoid defendant and, in the process, strike nearby construction fencing. Defendant maintains that she was crossing a street in a crosswalk with a pedestrian crossing signal in her favor, and that plaintiff failed to yield the right of way to defendant and that plaintiff is solely (or at least significantly) to blame for his claimed injuries.
Plaintiff commenced this action to recover damages for the personal injuries he allegedly sustained as a result of the accident. Defendant interposed an answer containing a number of affirmative defenses; seven of those defenses relate to plaintiff's alleged comparative fault (see CPLR 1411 ). Discovery was completed and a note of issue was filed.
The first affirmative defense alleges that plaintiff's culpable conduct caused in whole or in part his injuries; the fourth affirmative defense alleges that plaintiff was "not properly or reasonably vigilant to avoid pedestrians"; the fifth affirmative defense alleges that plaintiff "was operating [his] bicycle while in an environment shared with other bicycles, motor vehicles and pedestrians"; the sixth affirmative defense alleges that plaintiff "was operating his bicycle in a manner and at a speed which was unsafe for the circumstances"; the seventh affirmative defense alleges that plaintiff "failed to see what was there to be seen and to avoid contact and collision with a pedestrian"; the eighth affirmative defense alleges that plaintiff "may not have utilized appropriate safety gear, equipment, or clothing"; and the ninth affirmative defense alleges that plaintiff "failed to signal his approach or to provide adequate warnings to the pedestrian before coming into contact and colli[ding] with the pedestrian."
Defendant seeks to bifurcate the trial of this action, arguing that "[t]he facts underlying th[e] incident and those [underlying] the plaintiff's alleged injuries are easily separable and are not so intertwined that they must be simultaneously presented to the trier of fact. In other words, the plaintiff's injuries are not probative in determining how the accident occurred" (Dorman, affirmation in support, at ¶ 13). In support of her motion, defendant submits the pleadings, the bill of particulars, and the transcripts of the deposition testimony of the parties and defendant's husband (who witnessed a portion of the events). Plaintiff opposes the motion to bifurcate. Plaintiff argues that by asserting comparative fault defenses, defendant has inextricably interwoven the issues of liability and damages, making a unified trial necessary (Gottfried, affirmation in opposition, at ¶¶ 12, 17). In support of his opposition, plaintiff submitted, among other things, the affidavits of two purported witnesses to the accident.
Also, plaintiff argues that his injuries are relevant to demonstrate that defendant was negligent. Plaintiff offered no medical evidence supporting this contention. Moreover, the nature and extent of plaintiff's injuries seem to have little relevance regarding whether defendant impeded plaintiff's path.
In reply, defendant stresses that bifurcation of personal injury actions is favored, and contends that plaintiff's injuries do not have an important bearing on the issue of defendant's liability.
Bifurcation of trial entails the trying of liability and damages separately, with the former tried first and the latter tried if necessary (see Siegel & Connors, NY Practice § 130 [6th ed]; Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 603 [main vol] ). As observed by the Second Department in Castro v. Malia Realty, LLC , 177 A.D.3d 58, 109 N.Y.S.3d 314, 2019 N.Y. Slip Op. 06466 (Scheinkman, P.J., Sept. 11, 2019), the bifurcation procedure is authorized by CPLR 603 ("Severance and separate trials") and 4011 ("Sequence of trial"), and encouraged by 22 NYCRR 202.42(a). That Uniform Rule provides that "[j]udges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action." Whether bifurcation will assist in clarifying or simplifying the issues and in achieving a fair and more expeditious resolution of a given action is a discretionary determination (see Castro v. Malia Realty, LLC , supra ).
Although unified trials tend to be the norm in Bronx County (at least for the past 10 years), bifurcated trials are conducted here.
The First Department has affirmed orders granting bifurcated trials where "questions of liability and damages [we]re distinct and severable issues and plaintiff's injuries [we]re not probative in determining how the accident occurred" ( Jackson v. Montefiore Medical Ctr. , 109 A.D.3d 762, 763, 971 N.Y.S.2d 528 [2013] ), and where a "plaintiff [wa]s able to testify about his or her state of mind and the nature of the accident, and the extent of [the] injuries were neither probative of how the incident occurred nor so intertwined with the damages as to require a unified trial" ( Mohammed v. Command Sec. Corp. , 83 A.D.3d 605, 605, 921 N.Y.S.2d 252 [2011] [internal quotation marks omitted] ).
Here, defendant, whose liability has not been established, has pleaded numerous affirmative defenses relating to plaintiff's comparative fault. Those defenses assert that plaintiff is, in whole or in part, responsible for his injuries. A fact finder could determine that any negligence by defendant was not a proximate cause of plaintiff's injuries, i.e., that plaintiff was the sole proximate cause of his injuries. Or, a fact finder could determine that both defendant and plaintiff were negligent and that their respective negligence proximately caused plaintiff's injuries, determinations that would require the fact finder to apportion fault for plaintiff's injuries. There are, of course, other potential trial outcomes.
Regardless of what a fact finder may conclude from trial evidence, one point seems clear: a fact finder should consider all of the evidence together at a unified trial to fairly and thoughtfully ascertain (1) whether defendant was negligent, (2) whether defendant's negligence (if any) was a proximate cause of plaintiff's injuries (see Bustamante v. Westinghouse Elevator Co. , 195 A.D.2d 318, 600 N.Y.S.2d 35 [1st Dept. 1993] ), (3) whether plaintiff was negligent, (4) whether plaintiff's negligence (if any) was a proximate cause of his injuries, and (5) if both defendant and plaintiff are found to have been negligent and that their respective negligence proximately caused plaintiff's injuries, the proper apportionment of fault for those injuries ( Doomes v. Best Transit Corp. , 92 A.D.3d 490, 491, 940 N.Y.S.2d 17 [1st Dept. 2012] ["as we have had occasion to point out in the past, the pertinent question to be decided by the jury is not the relative culpability of defendants in causing the accident but their relative culpability in causing the injuries complained of"] [emphasis in original]; see Arbegast v. Bd. of Ed. of South New Berlin Central School , 65 N.Y.2d 161, 168, 490 N.Y.S.2d 751, 480 N.E.2d 365 [1985] ["what [the comparative fault statute, CPLR 1411,] requires comparison of is not negligence but conduct which, for whatever reason, the law deems blameworthy, in order to fix the relationship of each party's conduct to the injury sustained and the damages to be paid by the one and received by the other as recompense for that injury"] [emphasis added] ).
In Rodriguez v. City of New York , 31 N.Y.3d 312, 317-321, 76 N.Y.S.3d 898, 101 N.E.3d 366 (2018), the Court concluded that, under CPLR article 14-A, a plaintiff's comparative fault relates to the issue of damages.
Because a fact finder will need all of the evidence—evidence regarding defendant's liability, evidence regarding plaintiff's comparative fault, and evidence regarding plaintiff's injuries—to consider and answer the five questions listed above, the issues of liability and damages are not distinct and severable. Rather, the issues of liability and damages are intertwined. Therefore, bifurcation would not assist in the clarification or simplification of the issues and would not promote a fair and more expeditious resolution of the action.
Accordingly, it is hereby ORDERED that defendant's motion is denied.
The parties are reminded of the October 7, 2019 pre-trial conference before the undersigned.
This constitutes the decision and order of the court.