| Winderman v Brooklyn/McDonald Ave. Shoprite Assoc., Inc. |
| 2011 NY Slip Op 05489 [85 AD3d 1018] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Chaim J. Winderman et al.,Appellants, v Brooklyn/McDonald Avenue Shoprite Associates, Inc.,Respondent. |
—[*1] Torino & Bernstein, P.C., Mineola, N.Y. (Bruce A. Torino of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Schack, J.), dated March 10, 2010, which, upona jury verdict, is in favor of the defendant and against them dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiff Chaim J. Winderman (hereinafter the injured plaintiff) allegedly received anelectric shock from a shopping cart owned by the defendant, Brooklyn/McDonald AvenueShopRite Associates, Inc. Allegedly as a result of the injury, the injured plaintiff underwent ulnarnerve decompression surgery. He and his wife, suing derivatively, commenced this action againstthe defendant. The trial court denied the plaintiffs' motion for a unified trial, and held abifurcated trial. Following the liability phase of the trial, the jury found that the defendant wasnegligent, but that its negligence was not a proximate cause of the plaintiffs' injuries. Theplaintiffs appeal, and we affirm.
The plaintiffs' claim that the trial court improperly instructed the jury on proximate cause iswithout merit. A jury charge is sufficient when, read as a whole, it adequately conveys the correctlegal principles (see Nestorowich v Ricotta, 97 NY2d 393, 401 [2002]; Casella v City of New York, 69 AD3d549, 550 [2010]; Manna v Don Diego, 261 AD2d 590, 591 [1999]; Roshwalb vRegency Mar. Corp., 182 AD2d 401 [1992]). Although, on two occasions, the trial courtimproperly stated "the" proximate cause rather than "a" proximate cause, the trial court otherwisecorrectly instructed the jury on the issue of proximate cause and the verdict sheet properlyincluded the question whether the defendant's negligence was "a substantial factor in causing theaccident." We thus conclude that the trial court's charge as a whole conveyed the correct legalstandard with respect to proximate cause (see Gregory v Cortland Mem. Hosp., 21 AD3d 1305, 1306 [2005]),and, therefore, any error in the charge was harmless (see Manna v Don Diego, 261 AD2dat 591).
Further, the trial court properly conducted a bifurcated trial. Courts are encouraged toconduct bifurcated trials in personal injury actions (see 22 NYCRR 202.42 [a]; Bertelle v New York City [*2]Tr. Auth., 19 AD3d 343, 344 [2005]). Unified trials shouldonly be held "where the nature of the injuries has an important bearing on the issue of liability"(Berman v County of Suffolk, 26AD3d 307, 308 [2006]). The decision whether to conduct a bifurcated trial rests within thediscretion of the trial court, and should not be disturbed absent an improvident exercise ofdiscretion (see Wright v New York City Hous. Auth., 273 AD2d 378, 378 [2000];Lind v City of New York, 270 AD2d 315, 316 [2000]; McIver v Canning, 204AD2d 698, 699 [1994]). The trial court providently exercised its discretion in conducting abifurcated trial, since the injured plaintiff's injuries did not have a bearing on the issue ofliability.
The plaintiffs' remaining contentions are without merit. Rivera, J.P., Eng, Roman and Miller,JJ., concur.