May v. Heiney ( 1960 )

Mario Pittoni, J.

The third-party defendant, United States Fidelity and Guaranty Co., moves for summary judgment, or in the alternative, for an order severing the third-party action from the primary action upon the ground that the defendant in the primary action and her insurer would be prejudiced by the disclosure of the identity of her insurance carrier before the jury.

The motion for summary judgment is denied. The main issue in this case, whether the owner gave actual or implied consent to the driver at the time of the accident, is a question of fact which can be decided only at the trial.

The motion for an order severing the third-party action from the primary action is granted. The opponents to the motion have shown no reason for trying these two causes at the same time before the same jury. The movant, on the other hand, has established probable and improper prejudice against the third-party defendant insurance company and its assured, defendant Libby Glasser, should the two causes be tried before the same jury. (Kelly v. Yannotti, 4 N Y 2d 603.)