D'Apice v. Tishman 919 Corp.

43 A.D.2d 925, 352 N.Y.S.2d 472, 1974 N.Y. App. Div. LEXIS 5676

Opinion

Order, Supreme Court, Bronx County, entered on or about November 16, 1972, which denied a motion for severance of the third-party complaint as against the defendant Employers Liability Assurance Corp., unanimously reversed, on the law and the facts and in the exercise of discretion, the motion granted and the third-party complaint severed as against defendant the Employers Liability Assurance Corporation, Limited. Appellant shall recover of third-party plaintiff-respondent $40 costs and disbursements of this appeal. The main action is one sounding in negligence and the third-party action against Otis Elevator Co. involves an issue of indemnity. The third-party action against Employers involves a dispute over insurance coverage. To allow this last issue to be tried before the same jury charged with the duty of determining issues of negligence and relative liability of the defendants would be error. The specific knowledge of the dispute over insurance coverage would of necessity temper the thinking of the jury and unduly influence their verdict. The prejudice inherent in a situation of this sort should be avoided. {Kelly v. Tarmotti, 4 N Y 2d 603; Strauss V. Bennett Bros. Corp., 27 A D 2d 528; Schwartz V. Jonathan Woodner & Co., 40 A D 2d 1027). It was therefore an improvident exercise of discretion to deny severance. Concur — Nunez, J. P., Kupferman, Murphy, Tilzer and Lane, JJ.