Gillard v. Reid

• Decision Date: 01 December 2016
• Citation: 42 N.Y.S.3d 150,2016 N.Y. Slip Op. 08120,145 A.D.3d 446
• Parties: Allan GILLARD, Plaintiff–Respondent, v. Bashon REID, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 446

42 N.Y.S.3d 150

2016 N.Y. Slip Op. 08120

Allan GILLARD, Plaintiff–Respondent,

v.Bashon REID, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Dec. 1, 2016.

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.

TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, KAHN, JJ.

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 A.D.3d 465, 466, 33 N.Y.S.3d 52 [1st Dept.2016] ; Maron v. Magnetic Constr. Group Corp., 128 A.D.3d 426, 427, 8 N.Y.S.3d 316 [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 A.D.2d 224, 225, 724 N.Y.S.2d 26 [1st Dept.2001], quoting Bender v. Underwood, 93 A.D.2d 747, 748, 461 N.Y.S.2d 301 [1st Dept.1983] ), and there is a real risk of jury confusion (see Witherspoon v. New York City Hous. Auth., 238 A.D.2d 276, 656 N.Y.S.2d 629 [1st Dept.1997] ; see also County of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691, 962 N.Y.S.2d 648 [2d Dept.2013] ).

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