CPLR § 602 Consolidation
Johnstone-mann v Stout, 2009 NY Slip Op 04829 (App. Div., 4th, 2009)
Memorandum: In action No. 1, the plaintiffs seek damages for injuries
sustained by Kim M. Johnstone-Mann when the vehicle she was driving
collided with a vehicle driven by Julie M. Stout, a defendant in action
No. 1. Julie Stout in turn commenced action No. 2 against
Johnstone-Mann, seeking damages arising from the same collision.
Supreme Court did not abuse its discretion in granting that part of the
motion of the defendants in action No. 1 and the plaintiff in action
No. 2 seeking a joint trial of the two actions (see generally Nationwide Assoc. v Targee St. Internal Med. Group, P.C. Profit Sharing Trust,
286 AD2d 717, 718). "Absent a showing of prejudice, a motion . . . for
a joint trial pursuant to CPLR 602 (a) should be granted where common
questions of law or fact exist" (Spector v Zuckermann, 287 AD2d
704, 706). We conclude, however, that the court erred in granting that
part of the motion seeking to bifurcate the trial. " Separate trials on
the issues of liability and damage[s] should not be held where the
nature of the injuries has an important bearing on the issue of
liability' " (Fox v Frometa, 43 [*2]AD3d
1432). Here, evidence of the injuries and resulting amnesia sustained
by Julie Stout is " necessary for the . . . purpose of allowing the
[trier of fact] to consider whether [she] should be held to a lesser
degree of proof' on the issue of liability" (id.; see Schwartz v Binder, 91 AD2d 660). We therefore modify the order accordingly.
The bold is mine.