Feldstein v. Greater New York Councils , 228 N.Y.S.2d 337 ( 1962 )

Judgment dismissing the complaint for failure to proceed with the trial of a personal injury action, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and a new trial ordered. The court in its discretion may order a separate trial of one or more issues in a ease prior to any trial of other issues (Civ. Prac. Act, § 443). If the complaint consisted only of the first cause of action, the dismissal would have been a proper exercise of discretion. However, the nature and extent of plaintiff’s injuries as alleged in the second cause of action, which complained of a failure to provide prompt medical treatment, have an important bearing on the question of liability. In our view plaintiff might well be prejudiced by a severance (cf. Berman v. H. J. Enterprises, 13 A D 2d 199). Additionally, some of the court feel that the remarks of the Trial Justice after the jury had been sworn could have been so misnnderstool by the jury as to have unfairly misled them to plaintiff’s detriment. Concur — Breitel, J. P., Valente, McNally, Stevens and Steuer, JJ.