HOPPER v. Construction Safety Environment, Inc., et al., Defendants.

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

William C. HOPPER, et al., Plaintiffs-Respondents, v. REGIONAL SCAFFOLDING AND HOISTING CO., INC., Defendant-Appellant, Construction Safety Environment, Inc., et al., Defendants.

Decided: May 25, 2000

SULLIVAN, P.J., ROSENBERGER, WILLIAMS, WALLACH and FRIEDMAN, JJ. Charles T. Glaws & Tracy Groves, for Defendant-Appellant.

Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered on or about April 12, 1999, which denied the motion of defendant Regional Scaffolding and Hoisting Co., Inc. for severance pursuant to CPLR 603, unanimously affirmed, without costs.

While it is true that plaintiff was injured in two separate incidents, the two incidents, as alleged, share a common injury producing instrumentality, i.e., an elevator, several common witnesses, and there may be an issue as to whether injuries allegedly sustained in the second incident were exacerbations of injuries sustained in the first incident.   Furthermore, defendant has not sufficiently demonstrated that prejudice would result in the absence of severance.   The potential prejudice identified by defendant could be prevented by the trial court's instructions to the jury.   Under these circumstances, the motion court's denial of severance was a proper exercise of discretion (see, Witherspoon v. New York City Hous. Auth., 238 A.D.2d 276, 656 N.Y.S.2d 629;  Andresakis v. Lynn, 236 A.D.2d 252, 653 N.Y.S.2d 559;  Kupferschmid v. Hennessy, 221 A.D.2d 225, 633 N.Y.S.2d 776).