Constable v. Matie , 608 N.Y.S.2d 10 ( 1993 )

Judgment reversed on the law without costs and new trial granted. Memorandum: On October 9, 1986, a vehicle driven by Robert Constable collided with a 1977 Buick Regal driven by defendant Andrew M. Matie. Plaintiff commenced this action to recover damages for injuries sustained by Robert in the accident. One of the central issues at trial was whether the Buick Regal was owned by Matie or defendant West Seneca Ford, Inc. Shortly before the accident, Matie had arranged to purchase the Buick from West Seneca Ford. The position of plaintiff and Matie was that the transfer of ownership had not been completed at the time of the accident. The jury found, however, that the vehicle was not owned by West Seneca Ford at the time of the accident. Judgment was entered on the jury’s verdict and post-trial motions by plaintiff and Matie to set aside the verdict and for a new trial were denied.

There must be a new trial because Supreme Court erred in admitting evidence that Matie obtained insurance coverage on the vehicle prior to the accident. In a negligence action, evidence that a defendant carries liability insurance is usually irrelevant and generally considered so prejudicial as to require a mistrial (see, Kowalski v Loblaws, Inc., 61 AD2d 340). As the dissent points out, evidence of insurance coverage may be admissible if relevant to a material issue, such as ownership (see, Leotta v Plessinger, 8 NY2d 449, 461-462; see also, Oltarsh v Aetna Ins. Co., 15 NY2d 111, 118). That exception to the general rule precluding evidence of insurance, however, is not without limit. Evidence relevant for the purpose of showing ownership may nevertheless be excluded if "the risk of confusion or prejudice is so great as to outweigh the advantage in receiving it (see 29 Am Jur 2d, Evidence, § 262; Nappi v Falcon Truck Renting Corp., 286 App Div 123, 126-127)” (Lynch v Ford, 60 AD2d 880, 881; see also, Levo v Greenwald, 107 AD2d 991, 992-993, affd 66 NY2d 962; Griffin v Corporation of Church of Assumption, 14 AD2d 620).

Here, because it was necessary for Matie to secure insurance in order to obtain the temporary registration for the Buick Regal, the probative value of evidence that Matie was insured for the purpose of proving ownership was far outweighed by its prejudicial impact. We cannot agree that the court’s curative instruction removed the harm. The prejudicial impact of the evidence of Matie’s insurance coverage "was too substantial and its relation to the outcome of this case too direct” (Santana v Oneida Motor Frgt., 91 AD2d 627, 628; see also, Lynch v Ford, 60 AD2d 880, 881, supra). Further, the error in admitting that evidence was compounded by the court’s ruling excluding evidence of West Seneca Ford’s insurance coverage. Admitting evidence that one defendant had insurance coverage while precluding evidence that another defendant also had coverage was so prejudicial as to require a new trial (see, Natoli v Russo, 67 AD2d 701).

All concur except Balio, J., who dissents and votes to affirm in the following Memorandum: