Hoffman v. Kew Gardens Hills Associates

187 A.D.2d 379, 590 N.Y.S.2d 197, 1992 N.Y. App. Div. LEXIS 13131

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1992
• Status: Published

Opinion

Order, Supreme Court, New York County (David B. Saxe, J.), entered December 31, 1991, which granted third-party defendants’ motion to sever the third-party action from the main action, unanimously affirmed, with costs.

Severance of the third-party action against third-party defendants, an insurance broker and his agency, for negligence and malpractice resulting from the insolvency of the first of two excess carriers was proper as a joint trial would result in substantial prejudice (see, Kelly v Yannotti, 4 NY2d 603, 607). The severing of negligence actions from insurance coverage actions applies to brokers and agents as well as to insurance companies (see, Johnson v Berger, 171 AD2d 728). Although the motion was brought pursuant to CPLR 1010, the court did not err in basing its finding not only upon substantial prejudice, but also on the lack of a common question of law or fact under CPLR article 6 which is also pertinent to the propriety of a single trial for a main and third-party action (see, 2 Weinstein-Korn-Miller, NY Civ Prac ¶¶ 603.14, 1010.05). Concur—Carro, J. P., Rosenberger, Wallach and Ross, JJ.