Fox v. Frometa

43 A.D.3d 1432, 841 N.Y.S.2d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2007
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered July 6, 2006 in a personal injury action. The order, insofar as appealed from, denied the motion of defendant Kenneth Litzinger to bifurcate the trial.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries sustained by her son in a motor vehicle accident. Supreme Court did not abuse its discretion in denying the motion of defendant Kenneth Litzinger to bifurcate the trial. “Separate trials on the issues of liability and damage[s] should not be held where the nature of the injuries has an important bearing on the issue of liability,” and plaintiff established that evidence of her son’s injuries and resulting amnesia “was necessary for the . . . purpose of allowing the jury to consider whether [she] should be held to a lesser degree of proof’ on the issue of liability (Schwartz v Binder, 91 AD2d 660 [1982]; see generally Iszkiewicz v Town of Lancaster, 16 AD3d 1163 [2005]). Present—Gorski, J.P., Snath, Centra, Fahey and Green, JJ.