Opinion
647 CA 18–00183
06-15-2018
Colleen M. ZBOCK, as Administratrix of the Estate of John P. Zbock, Jr., Deceased, Plaintiff–Respondent, v. Daniel B. GIETZ, Defendant, Phillip C. Fournier, Fournier Enterprises, Inc., and Cope Bestway Express, Inc., doing business as Bestway Distribution Service, Defendants–Appellants.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (PHYLISS A. HAFNER OF COUNSEL), FOR DEFENDANTS–APPELLANTS. LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
BURDEN, HAFNER & HANSEN, LLC, BUFFALO (PHYLISS A. HAFNER OF COUNSEL), FOR DEFENDANTS–APPELLANTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF–RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff, as administratrix of decedent's estate, commenced this action seeking damages for decedent's wrongful death and conscious pain and suffering allegedly resulting from a motor vehicle accident. Among the vehicles involved in the accident was a tractor-trailer owned by defendants Fournier Enterprises, Inc. and Cope Bestway Express, Inc., doing business as Bestway Distribution Service, and operated by defendant Phillip C. Fournier (collectively, Fournier defendants). On a prior appeal, we determined that Supreme Court (Drury, J.), inter alia, properly denied those parts of the motion of the Fournier defendants seeking summary judgment on the issues of negligence, proximate cause and the applicability of the emergency doctrine, and seeking dismissal of plaintiff's claim for damages based upon decedent's preimpact terror ( Zbock v. Gietz, 145 A.D.3d 1521, 1522–1523, 44 N.Y.S.3d 302 [4th Dept. 2016] ).
Following our decision in the prior appeal, the Fournier defendants moved to bifurcate the liability and damages portions of the trial. We conclude that Supreme Court (Montour, J.) did not abuse its discretion in denying their motion. "As a general rule, ‘[i]ssues of liability and damages in a negligence action are distinct and severable issues that should be tried and determined separately’ " ( Wesselenyi v. Santiago [Appeal No. 1], 286 A.D.2d 964, 964, 731 N.Y.S.2d 421 [4th Dept. 2001] ; see Piccione v. Tri-main Dev. , 5 A.D.3d 1086, 1087, 773 N.Y.S.2d 665 [4th Dept. 2004] ). Here, however, plaintiff established that bifurcation would not assist in clarification or simplification of the issues or a more expeditious resolution of the action (see Carlson v. Porter [Appeal No. 2], 53 A.D.3d 1129, 1131, 861 N.Y.S.2d 907 [4th Dept. 2008], lv denied 11 N.Y.3d 708, 868 N.Y.S.2d 601, 897 N.E.2d 1085 [2008] ; Mazur v. Mazur , 288 A.D.2d 945, 945–946, 732 N.Y.S.2d 204 [4th Dept. 2001] ). Inasmuch as plaintiff seeks damages for decedent's alleged preimpact terror, "the proof of [his] injury would overlap with the proof regarding liability [and thus] the nature of the alleged injuries is intertwined with the question of liability" ( Barron v. Terry , 268 A.D.2d 760, 762, 702 N.Y.S.2d 171 [3d Dept. 2000] ; see Carpenter v. County of Essex , 67 A.D.3d 1106, 1108, 888 N.Y.S.2d 278 [3d Dept. 2009] ). In addition, we note that the court was in the best position to evaluate the contentions of the Fournier defendants that a defense verdict on liability "was likely so as to obviate the necessity of a second trial" ( Johnson v. Hudson Riv. Constr. Co., Inc. , 13 A.D.3d 864, 865, 786 N.Y.S.2d 250 [3d Dept. 2004] ), and that settlement was likely if they did not prevail at the liability phase of a bifurcated trial (see Carpenter , 67 A.D.3d at 1107 n. 2, 888 N.Y.S.2d 278 ; Johnson , 13 A.D.3d at 865, 786 N.Y.S.2d 250 ), and we decline to disturb the court's exercise of discretion in declining to bifurcate the trial on those grounds here.