Toscani v. One Bryant Park, LLC

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 2016
• Status: Published

Opinion

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, 377 [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).

Concur — Friedman, J.P., Renwick, Moskowitz, Richter and Kapnick, JJ.