Mihalchik v. Schepis Construction Co.

8 A.D.2d 618, 185 N.Y.S.2d 99, 1959 N.Y. App. Div. LEXIS 9327

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 6, 1959
• Status: Published

Opinion

In an action to recover damages for wrongful death and for personal injuries, and for medical expenses and loss of services (Action No. 1), and in an action to recover damages for personal injuries and for medical expenses and loss of services (Action No. 2) against the operator of a motor vehicle and the owner of said vehicle, Schepis Construction Co., Inc., the corporation appeals from an order denying its motion for a separate trial of the issue of whether its motor vehicle was being operated with its knowledge, consent and permission, prior to trial of all other issues. Order reversed, with $10 costs and disbursements, and motion granted. Damages in these actions are sought, inter alla, by four persons and by the representatives of the intestate, passengers in appellant’s motor vehicle. The circumstances disclosed in the record indicate that trial of the issue in question would be relatively short, that trial of all the other issues would probably be protracted, that trial of the other issues, if indeed not obviated entirely by the determination to be made upon a trial of the said issue in question, would not require presentation of the same evidence that would be relevant on the said issue, and that there is substantial merit to appellant’s position on this issue. Under these circumstances, it was an improvident exercise of discretion to deny the motion (cf. Reich v. Cochran, 171 App. Div. 113; see Chudyk v. 5th Ave. Coach Line, 6 A D 2d 1003). Nolan, P. J., Wenzel, Murphy, Hallinan and Kleinfeld, JJ., concur.