Toscani v. One Bryant Park, LLC

139 A.D.3d 644, 31 N.Y.S.3d 863

Opinion

Toscani v One Bryant Park, LLC (2016 NY Slip Op 04153)

Toscani v One Bryant Park, LLC

2016 NY Slip Op 04153

Decided on May 31, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 31, 2016
Friedman, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.

1338N 305428/08

[*1] John Toscani, et al., Plaintiffs-Respondents, James Jackson, et al., Plaintiffs,

v

One Bryant Park, LLC, et al., Defendants-Appellants.

Lewis Brisbois Bisgaard & Smith LLP, New York (Alan Kaminsky of counsel), for appellants.

Sacks and Sacks, LLP, New York (Scott N. Singer of counsel), for John Toscani and Patricia Toscani, respondents.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered August 24, 2015, which granted plaintiffs' motion for renewal and/or reargument of their motion for severance of the consolidated personal injury actions and separate damages trials, and upon renewal, granted the motion for severance, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting plaintiffs leave to renew on the ground that plaintiffs would be unduly prejudiced by consolidated damages trials, i.e.,

"so as not to defeat substantive fairness" (Tishman Constr. Corp. of N.Y. v City of New York , 280 AD2d 374, 365 [1st Dept 2001] [internal quotation marks omitted]).

Summary judgment on the issue of liability under Labor Law § 240(1) having been granted in plaintiffs' favor against defendants One Bryant Park, LLC and Tishman Construction Corporation, plaintiffs' individual issues will predominate; severance is warranted to avoid substantial prejudice to the individual claims arising from potential juror confusion or comparative review of the claims (see Bender v Underwood , 93 AD2d 747 [1st Dept 1983] CPLR 603).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 31, 2016

CLERK