GOLFO v. LOEVNER (2004)

In an action to recover damages for personal injuries (Action No. 1), and an action to recover damages for negligence and breach of contract (Action No. 2), Whitman Group, Ltd., the defendant in Action No. 2, appeals from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated May 28, 2003, which granted the motion of the plaintiff in Action No. 1 for a joint trial of Action Nos. 1 and 2.

ORDERED that the order is reversed, on the law, with costs, and the motion is denied.

The Supreme Court erred in granting the motion of the plaintiff in Action No. 1 for a joint trial of Action No. 1, an action to recover damages for personal injuries sustained on a boat, and Action No. 2, an action to recover damages for the negligent failure to provide adequate liability and casualty insurance coverage for the boat and for breach of contract, since the two actions do not involve common questions of law or fact (see CPLR 602[a];  Johnson v. Berger, 171 A.D.2d 728, 567 N.Y.S.2d 284;  Dreizen v. Morris I. Stoler, Inc., 98 A.D.2d 759, 469 N.Y.S.2d 471).   Moreover, a joint trial of these two actions could result in substantial prejudice to the defendants in Action No. 2 (see Kelly v. Yannotti, 4 N.Y.2d 603, 176 N.Y.S.2d 637, 152 N.E.2d 69;  Paramount Ins. Co. v. Rosedale Gardens, 293 A.D.2d 235, 743 N.Y.S.2d 59;  Schorr Bros. Dev. Corp. v. Continental Ins. Co., 174 A.D.2d 722, 573 N.Y.S.2d 874;  Dreizen v. Morris I. Stoler, Inc., supra).   Accordingly, the motion should have been denied.