ALEX MILLER PLAINTIFF RESPONDENT v. AND AMORE USED CARS REPAIRS INC DEFENDANT APPELLANT (2016)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he sustained when the vehicle in which he was a passenger collided with a tree.  Plaintiff alleged theories of liability with respect to the collision, and he alleged that Amore's Used Cars & Repairs, Inc. (defendant) was negligent in repairing the vehicle such that it was responsible for the injuries caused by the failure of the passenger air bag to deploy.  Supreme Court previously granted the motion of defendant County of Cattaraugus to bifurcate the trial, granting bifurcation of the “issue of negligence on each of the separate theories of liability as to each defendant, with the damages phase of the trial to proceed at a later date before a separate jury.”  Plaintiff thereafter moved for a separate trial on the issue of defendant's negligence, contending that the issues of liability for the collision were distinct from the issue of negligence with respect to the repair of the vehicle, and that the injuries sustained by plaintiff as the result of the failure of the air bag to deploy are capable of practicable division.  Defendant appeals from an order granting the motion, and we now affirm.

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue” (CPLR 603).  “The determination of a severance motion under CPLR 603 ‘is a matter of judicial discretion which will not be disturbed on appeal absent an abuse of discretion or prejudice to a substantial right of the party seeking severance’ “ (Utica Mut. Ins. Co. v. American Re–Insurance Co., 132 AD3d 1405, 1405).  Even where a plaintiff “will to some extent rely on the same evidence” (Abbondandolo v. Hitzig, 282 A.D.2d 224, 225), severance is appropriate where “ ‘individual issues predominate, concerning particular circumstances applicable to each [defendant], ․ [and there] is the possibility of confusion for the jury’ “ (Gittino v. LCA Vision, 301 A.D.2d 847, 847–848).  Here, the allegations of negligence with respect to defendant do not relate to the occurrence of the accident itself, but they instead concern the repair and maintenance history of the vehicle prior to the collision.  Under these circumstances, we conclude that the court did not abuse its discretion in granting plaintiff's severance motion (see Utica Mut. Ins. Co., 132 AD3d at 1406).

Frances E. Cafarell

Clerk of the Court