Andresakis v. Lynn

236 A.D.2d 252, 653 N.Y.S.2d 559

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 1997
• Status: Published

Opinion

—Orders, Supreme Court, New York County (Beverly Cohen, J.), entered on or about July 23, 1996 and August 14, 1996, which denied second third-party defendant Levinsky’s motions to sever the second third-party action from the main and third-party actions, unanimously affirmed, without costs.

In this dental malpractice action, plaintiffs allegedly were injured as a result of treatment rendered by three defendant dentists employed in the office of a fourth defendant dentist. Clearly, there are common issues of law and fact concerning plaintiffs’ alleged damages. It is apparent that part of the defense of each of the defendants will be that it was the treatment rendered by his colleague(s) which led to plaintiffs’ alleged injuries. The same medical evidence and the testimony of common witnesses can be anticipated whether the actions are tried jointly or separately, and appellant fails to demonstrate that prejudice to a substantial right would result in the absence of a severance (Shanley v Callarian Indus., 54 NY2d 52, 57; Dolce v Jones, 145 AD2d 594). Concur—Sullivan, J. P., Rosenberger, Ellerin and Williams, JJ.