JOHNSTONE MANN v. STOUT (2009)

 In action No. 1, the plaintiffs seek damages for injuries sustained by Kim M. Johnstone-Mann when the vehicle she was driving collided with a vehicle driven by Julie M. Stout, a defendant in action No. 1. Julie Stout in turn commenced action No. 2 against Johnstone-Mann, seeking damages arising from the same collision.   Supreme Court did not abuse its discretion in granting that part of the motion of the defendants in action No. 1 and the plaintiff in action No. 2 seeking a joint trial of the two actions (see generally Nationwide Assoc. v. Targee St. Internal Med. Group, P.C. Profit Sharing Trust, 286 A.D.2d 717, 718, 730 N.Y.S.2d 349).  “Absent a showing of prejudice, a motion ․ for a joint trial pursuant to CPLR 602(a) should be granted where common questions of law or fact exist” (Spector v. Zuckermann, 287 A.D.2d 704, 706, 732 N.Y.S.2d 243).   We conclude, however, that the court erred in granting that part of the motion seeking to bifurcate the trial.  “ ‘Separate trials on the issues of liability and damage[s] should not be held where the nature of the injuries has an important bearing on the issue of liability’ ” (Fox v. Frometa, 43 A.D.3d 1432, 841 N.Y.S.2d 914).   Here, evidence of the injuries and resulting amnesia sustained by Julie Stout is “ ‘necessary for the ․ purpose of allowing the [trier of fact] to consider whether [she] should be held to a lesser degree of proof’ on the issue of liability” (id.;   see Schwartz v. Binder, 91 A.D.2d 660, 457 N.Y.S.2d 109).   We therefore modify the order accordingly.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying that part of the motion seeking to bifurcate the trial and as modified the order is affirmed without costs.

MEMORANDUM: