Liss v. Armstrong Furnace Co.

90 A.D.2d 824, 455 N.Y.S.2d 837, 1982 N.Y. App. Div. LEXIS 19067

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 22, 1982
• Status: Published

Opinion

In actions (1) to recover damages, inter alia, for personal injuries sustained by the infant plaintiff Adam Liss (Action No. 1), (2) to recover damages for personal injuries sustained by plaintiff Charles M. Edwards (Action No. 2), and (3) to recover damages for the wrongful death of Irwin Liss (Action No. 3), the executors of the estate of Irwin Liss, as defendants in Actions Nos. 1 and 2, and Alice Liss, as third-party defendant in Actions Nos. 2 and 3, separately appeal from an order of the Supreme Court (Coppola, J.), dated July 6, 1982 and entered in Orange County, which denied the motion of the aforesaid executors, which was joined in by third-party defendant Alice Liss, to sever Action No. 3 from Actions Nos. 1 and 2. Order affirmed, without costs or disbursements. In our opinion, the appellants have not presented competent evidence demonstrating that the previously ordered joint trial is likely to prejudice the executors as defendants in Actions Nos. 1 and 2 and Alice Liss as a third-party defendant in Actions Nos. 2 and 3. We note that the record does not contain excerpts from examinations before trial or statements of witnesses. Appellants’ fears are based upon attorney speculation as to which witnesses will testify, the substance of their testimony, the rulings expected from a trial court at a trial which has yet to take place and misconceptions concerning the “Dead Man’s Statute” (see CPLR 4519; see, also, Matter of Wood, 52 NY2d 139). Moreover, the joint trial order was granted on application of the executors, who thereafter moved for a severance. Accordingly, Special Term properly exercised its discretion in denying the motion. Damiani, J. P., Mangano, Gibbons and Gulotta, JJ., concur.