Pierce v. International Harvester Co. , 1978 N.Y. App. Div. LEXIS 13416 ( 1978 )

Hancock, Jr., J. (dissenting).

Whether or not a severance is to be granted here is a question that should be decided by Special Term in its discretion in the light of all the circumstances including those pertaining to the state of the trial calendar (see CPLR 1010). The factors of delay and additional expense, in my opinion, have not been shown to be sufficiently prejudicial to warrant disturbing the exercise of that discretion (see Rodriguez v St. Francis Hosp., 43 AD2d 965). Nor is it a reason for severance that the claimed culpability of International Harvester arises out of statutory absolute liability and that of Pierce arises out of common-law negligence and violations of a statute and regulations. In third-party actions based on Dole v Dow Chem. Co. (30 NY2d 143) the jury is often required to assess the relative liability of the defendant and the third-party defendant based on different legal theories of duty and fault (Siegel, NY Prac, § 157; see Holloway v Brooklyn Union Gas Co., 50 AD2d 603; Norman Co. v County of Nassau, 63 Misc 2d 965, revd on other grounds 27 AD2d 936). Furthermore, a joint trial here would prevent the possibility of inconsistent results on the question of causation (see Rodriguez v St. Francis Hosp., supra; Kunstadt v Tietelbaum, 36 AD2d 744).

The order should be affirmed.

Cardamone, J. P., Dillon and Schnepp, JJ., concur with Witmer, J.; Hancock, Jr., J., dissents in an opinion and votes to affirm the order.

Order reversed, with costs, and motions granted.