Pirodsky v. Pirodsky

Appellate Division of the Supreme Court of New York

Pirodsky v. Pirodsky

179 A.D.2d 1066, 579 N.Y.S.2d 524, 1992 N.Y. App. Div. LEXIS 2426

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 31, 1992

StatusPublished

Cited by5 cases

This text of 179 A.D.2d 1066 (Pirodsky v. Pirodsky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pirodsky v. Pirodsky, 179 A.D.2d 1066, 579 N.Y.S.2d 524, 1992 N.Y. App. Div. LEXIS 2426 (N.Y. Ct. App. 1992).

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Opinion

In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff’s words or actions immediately preceding the assault provoked defendant’s assault (see, Kiff v Youmans, 86 NY 324, 330; Voltz v Blackmar, 64 NY 440, 445; Calabrese v Allright N. Y. Parking, 93 AD2d 973; 2 NY PJI 16 [1990 Supp]). Where, as here, defendant raises the affirmative defense of plaintiff’s culpable conduct, the relative degree of culpability between plaintiff and defendant should be resolved with the issue of damages (see, Cox v [1067]*1067Howell, 170 AD2d 1039; Jordan v Britton, 128 AD2d 315, 321-322).

Supreme Court did not abuse its discretion, however, in denying defendant’s motion to consolidate the matrimonial action and the assault action. A motion to consolidate is directed to the sound discretion of the court and the court is given wide latitude in the exercise thereof (Inspiration Enters, v Inland Credit Corp., 54 AD2d 839, 840). The two actions involve many dissimilar issues which may confuse a jury; separate trials will enable the jury to focus on the factual issues presented in each action (see, Brown v Brooklyn Union Gas Co., 137 AD2d 479, 480; Doll v Castiglione, 86 AD2d 711). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Partial Summary Judgment.) Present — Denman, P. J., Callahan, Green, Lawton and Davis, JJ.

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In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff’s words or actions immediately preceding the assault provoked defendant’s assault (see, Kiff v Youmans, 86 NY 324, 330; Voltz v Blackmar, 64 NY 440, 445; Calabrese v Allright N. Y. Parking, 93 AD2d 973; 2 NY PJI 16 [1990 Supp]). Where, as here, defendant raises the affirmative defense of plaintiff’s culpable conduct, the relative degree of culpability between plaintiff and defendant should be resolved with the issue of damages (see, Cox v [1067]*1067Howell, 170 AD2d 1039; Jordan v Britton, 128 AD2d 315, 321-322).

Supreme Court did not abuse its discretion, however, in denying defendant’s motion to consolidate the matrimonial action and the assault action. A motion to consolidate is directed to the sound discretion of the court and the court is given wide latitude in the exercise thereof (Inspiration Enters, v Inland Credit Corp., 54 AD2d 839, 840). The two actions involve many dissimilar issues which may confuse a jury; separate trials will enable the jury to focus on the factual issues presented in each action (see, Brown v Brooklyn Union Gas Co., 137 AD2d 479, 480; Doll v Castiglione, 86 AD2d 711). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Partial Summary Judgment.) Present — Denman, P. J., Callahan, Green, Lawton and Davis, JJ.

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Bluebook (online)

179 A.D.2d 1066, 579 N.Y.S.2d 524, 1992 N.Y. App. Div. LEXIS 2426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pirodsky-v-pirodsky-nyappdiv-1992.

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