Opinion
January 27, 1984
Appeal from the Supreme Court, Monroe County, Erwin, J.
Present — Hancock, Jr., J.P., Doerr, Green, O'Donnell and Moule, JJ.
Order unanimously reversed, without costs, and motion denied. Memorandum: Special Term erred in ordering consolidation of an action for personal injury and property damage with an action for a declaratory judgment to determine whether an insurance company has a duty to defend the defendant in the first action. The prejudice inherent in a situation of this sort should be avoided (see Kelly v Yannotti, 4 N.Y.2d 603, 607-608; Krieger v Insurance Co., 66 A.D.2d 1025, 1026; Pierce v International Harvester Co., 65 A.D.2d 254, 258; McDavid v Gunnigle, 50 A.D.2d 737, 738; D'Apice v Tishman 919 Corp., 43 A.D.2d 925). Defendant's request for a stay of the personal injury action until the declaratory judgment action is decided should be addressed to the Calendar Judge.