Zacharias v. Waldbaum, Inc.

Appellate Division of the Supreme Court of New York

Zacharias v. Waldbaum, Inc.

208 A.D.2d 528, 616 N.Y.S.2d 1003, 1994 N.Y. App. Div. LEXIS 9357

Appellate Division of the Supreme Court of the State of New York·Decided October 3, 1994·Published·Cited by 5 cases

Opinion

—In two actions to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated May 12, 1993, as denied the branch of the plaintiffs’ motion which was for a joint trial of the two actions pursuant to CPLR 602.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the facts of these two cases, the court properly exercised its discretion in denying the plaintiffs’ motion for a [529] joint trial. Although both of these cases involve similar back injuries that allegedly occurred 4 years apart, the plaintiffs failed to allege specifically that the second accident had aggravated the injury caused by the first accident. The plaintiffs also failed to submit an affidavit from a treating physician to support such an allegation (see, Boyman v Bryant, 133 AD2d 802; McIver v Canning, 204 AD2d 698; Heck v Waldbaum’s Supermarkets, 134 AD2d 568, 569; Dolce v Jones, 145 AD2d 594; cf., Melendez v Presto Leasing, 161 AD2d 501; Richardson v Uess Leasing Corp., 191 AD2d 394). Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.

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—In two actions to recover damages for personal injuries, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated May 12, 1993, as denied the branch of the plaintiffs’ motion which was for a joint trial of the two actions pursuant to CPLR 602.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the facts of these two cases, the court properly exercised its discretion in denying the plaintiffs’ motion for a [529] joint trial. Although both of these cases involve similar back injuries that allegedly occurred 4 years apart, the plaintiffs failed to allege specifically that the second accident had aggravated the injury caused by the first accident. The plaintiffs also failed to submit an affidavit from a treating physician to support such an allegation (see, Boyman v Bryant, 133 AD2d 802; McIver v Canning, 204 AD2d 698; Heck v Waldbaum’s Supermarkets, 134 AD2d 568, 569; Dolce v Jones, 145 AD2d 594; cf., Melendez v Presto Leasing, 161 AD2d 501; Richardson v Uess Leasing Corp., 191 AD2d 394). Sullivan, J. P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.

Zacharias v. Waldbaum, Inc., 208 A.D.2d 528, 616 N.Y.S.2d 1003, 1994 N.Y. App. Div. LEXIS 9357 (N.Y. Ct. App. 1994).

Pincite

208 A.D.2d 528 (Zacharias v. Waldbaum, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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