Opinion
No. 651 CA 21-00532
10-06-2023
MARK D. BOGUMIL, PLAINTIFF-APPELLANT, v. GREENBAUM FAMILY HOLDINGS, LP, TORTORA PROPERTY MANAGEMENT, INC., VINCENT TORTORA, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANT.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT. HURWITZ & FINE, P.C., BUFFALO (V. CHRISTOPHER POTENZA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
LIPSITZ GREEN SCIME CAMBRIA LLP, BUFFALO (JOHN A. COLLINS OF COUNSEL), FOR PLAINTIFF-APPELLANT.
HURWITZ & FINE, P.C., BUFFALO (V. CHRISTOPHER POTENZA OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered March 29, 2021. The order granted the motion of defendants Greenbaum Family Holdings, LP, Tortora Property Management, Inc., and Vincent Tortora to bifurcate.
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when he fell from an "upper patio or balcony" of an apartment building owned by defendant-respondent Greenbaum Family Holdings, LP and maintained by defendants-respondents Tortora Property Management, Inc. and Vincent Tortora. We agree with plaintiff that Supreme Court abused its discretion in granting defendants-respondents' motion to bifurcate the trial with respect to the issues of liability and damages. "As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately" (Abate v Wolf, 219 A.D.3d 1118, 1120 [4th Dept 2023] [internal quotation marks omitted]; see Almuganahi v Gonzalez, 156 A.D.3d 1491, 1492 [4th Dept 2017]). Here, however, we conclude that the issue of liability is not distinct from the issue of plaintiff's injuries because plaintiff made statements to several of his medical care providers following his fall that render the testimony of several medical witnesses as well as hospital and medical records relevant to the liability phase of the trial. Plaintiff has thus established that bifurcation would not "assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action" (22 NYCRR 202.42 [a]; see Zbock v Gietz, 162 A.D.3d 1636, 1636 [4th Dept 2018]; Kasprzak v Delaware YMCA, 289 A.D.2d 1002, 1002 [4th Dept 2001]).