Johnson v. Berger

In an action to recover damages for legal malpractice (Action No. 1), and an action to recover damages for negligence (Action No. 3), the defendant in Action No. 3 appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Joy, J.), dated September 13, 1989, as granted that branch of the motion of the plaintiffs in Action No. 3 which was for a joint trial of Action Nos. 1 and 3.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the plaintiffs in Action No. 3 which was for a joint trial of Action Nos. 1 and 3 is denied.

The Supreme Court erred in directing a joint trial of Action No. 1, a legal malpractice action, and Action No. 3, a negligence action brought by one of the defendants in Action No. 1 against his professional liability insurance agent, for the purpose of trial, as those actions do not involve common questions of law or fact (see, CPLR 602 [a]). Moreover, a joint trial of those actions could result in substantial prejudice (see, Marx v Minasi, 43 AD2d 943; Schwartz v Woodner & Co., 40 AD2d 1027). Thus, reversal is warranted. Bracken, J. P., Brown, O’Brien and Ritter, JJ., concur.