| Pierre-Louis v DeLonghi Am., Inc. |
| 2009 NY Slip Op 07607 [66 AD3d 855] |
| October 20, 2009 |
| Appellate Division, Second Department |
| Marie Pierre-Louis, Respondent, v DeLonghi America,Inc., et al., Respondents, and Antoneen Darden et al., Appellants. (Action No. 1.) TowerInsurance Company of New York, as Subrogee of Antoneen Darden, Appellant, v DeLonghiAmerica, Inc., et al., Respondents. (Action No. 2.) Allstate Insurance Company, as Subrogee ofRick E. Britton and Another, Plaintiff, v Antoneen Darden et al., Defendants. (And a Third-PartyAction.) (Action No. 3.) |
—[*1] Fricke & Solomon, P.C., Staten Island, N.Y. (Robert A. Solomon of counsel), forplaintiff-respondent in action No. 1. Pino & Associates, LLP, White Plains, N.Y. (Thomas E. Healy of counsel), fordefendants-respondents.
In an action, inter alia, to recover damages for wrongful death and personal injuries (actionNo. 1), and two subrogation actions to recover insurance benefits paid (action Nos. 2 and 3),Antoneen Darden-McCall, sued herein as Antoneen Darden and Antoneen McCall and MarquesMcCall, also known as Marcus McCall, defendants in action No. 1, Matthew McCall, adefendant in action No. 1, and Tower Insurance Company of New York, the plaintiff in actionNo. 2, appeal from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedOctober 12, 2007, as granted that branch of the motion of Marie Pierre-Louis, the plaintiff inaction No. 1, which was for a joint trial of action Nos. 1 and 2.
Ordered that the order is affirmed insofar as appealed from, with costs to the respondentsappearing separately and filing separate briefs, payable by the appellants.
This appeal stems from three related actions. In action No. 1, the plaintiff sought, inter alia,to recover damages for wrongful death from, among others, Antoneen Darden-McCall, suedherein as Antoneen Darden and Antoneen McCall (hereinafter Darden) arising out of a fire onthe premises owned by Darden. In action No. 2, Tower Insurance Company of New York, assubrogee of Darden, sought [*2]to recoup from the defendantsDeLonghi America, Inc., and Home Depot, Inc., in action No. 1 the money it paid on Darden'sclaim arising out of the same fire. Insofar as is now relevant, following the completion ofdiscovery, the Supreme Court, inter alia, granted that branch of the motion of the plaintiff inaction No. 1, pursuant to CPLR 602 (a), which was for a joint trial of action Nos. 1 and 2.
When there are common questions of law or fact, a joint trial is warranted unless theopposing party demonstrates prejudice to a substantial right (see Glussi v Fortune Brands,276 AD2d 586, 587 [2000]; Ryckman v Schlessinger-Levi-Polatsch-Tydings, 225AD2d 603 [1996]; North Side Sav. Bank v Nyack Waterfront Assoc., 203 AD2d 439[1994]). Here, although the appellants demonstrated that they will be prejudiced if action Nos. 1and 2 are tried before the same jury, since it will bring to the jury's attention the existence ofliability insurance in action No. 1 (see Kelly v Yannotti, 4 NY2d 603 [1958]; Christensen v Weeks, 15 AD3d330 [2005]; Medick v Millers Livestock Mkt., 248 AD2d 864, 865 [1998]; see also Alben v Mid-Hudson Med. Group,P.C., 31 AD3d 471 [2006]), the prejudice to the appellants is outweighed by thepossibility of inconsistent verdicts if separate trials ensue (see Millington v Williams,250 AD2d 977 [1998]; Kupferschmid v Hennessy, 221 AD2d 225 [1995];Richardson v Uess Leasing Corp., 191 AD2d 394 [1993]). Further, the prejudice to theappellants can be mitigated by the trial court with the appropriate jury instructions. Accordingly,the Supreme Court providently exercised its discretion in granting that branch of the plaintiff'smotion which was for a joint trial of action Nos. 1 and 2. Skelos, J.P., Fisher, Belen and Lott, JJ.,concur.