Gillard v. Reid , 145 A.D.3d 446 ( 2016 )

Gillard v Reid (2016 NY Slip Op 08120)

Gillard v Reid

2016 NY Slip Op 08120

Decided on December 1, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 1, 2016
Tom, J.P., Acosta, Andrias, Moskowitz, Kahn, JJ.

2370N 300637/07

[*1] Allan Gillard, Plaintiff-Respondent,

v

Bashon Reid, et al., Defendants-Appellants.

Gallo Vitucci Klar LLP, New York (Mary L. Maloney of counsel), for appellants.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for respondent.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered November 20, 2015, which denied defendants' motion to join this negligence action with two other actions with the same plaintiff pending in Bronx County, Supreme Court, unanimously affirmed, without costs.

The court providently exercised its discretion by refusing to join three unrelated actions for trial: a motor vehicle negligence action, a premise liability action, and a medical malpractice action. When Supreme Court decided the motion, this motor vehicle negligence action was ready for trial, while the other two actions were still in discovery. Where actions are at completely different procedural postures with one ready for trial and the other in discovery, denial of a joint trial is appropriate, as it would unduly delay the resolution of the older

action (see McGinty v Structure-Tone, 140 AD3d 465, 466 [1st Dept 2016]; Maron v Magnetic Constr. Group Corp., 128 AD3d 426, 427 [1st Dept 2015]).

In addition, the cases involve different facts, witnesses, claims, injuries, and defendants. As such, " individual issues predominate . . . so as to preclude the direction of a joint trial'" (Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 2001], quoting Bender v Underwood, 93 AD2d 747, 748 [1st Dept 1983]), and there is a real risk of jury confusion (see Witherspoon v New York City Hous. Auth., 238 AD2d 276 [1st Dept 1997]; see also County of Westchester v White Plains Ave., LLC, 105 AD3d 690, 691 [2d Dept 2013]).

The court has considered defendants' other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 1, 2016

CLERK