Opinion
Nos. 577N, 578N.
March 22, 2007.
Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about December 2, 2005, which granted the motion by third-party defendant Hermitage Insurance Company (Hermitage) for severance of the third-party action and denied its motion for a change of venue in the same action, unanimously modified, on the law, the motion granted to the extent of directing that the venue of the severed third-party action be transferred to Suffolk County, and otherwise affirmed, without costs.
R. Kenneth Jewell, New York, for appellants-respondents.
Mirman, Markovits Landau, P.C., New York (Scott Wunderlich of counsel), for respondents.
Gold, Stewart, Kravatz, Benes Stone, LLP, Westbury (Jeffrey B. Gold of counsel), for respondent-appellant.
Before: Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.
The motion court properly severed the main and third-party actions, since those actions do not involve common questions of law or fact. The issue in the third-party action is whether Hermitage received contractually timely notice of the claim, while the main action involves questions of negligence ( see Dreizen v Morris I. Stolen Inc., 98 AD2d 759). Further, "[i]t is generally recognized that, even where common facts exist, it is prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims" ( Medick v Millers Livestock Mkt, 248 AD2d 864, 865 [internal quotation marks and citation omitted]; Kelly v Yannotti, 4 NY2d 603, 607).
Hermitage's motion should have been granted to the further extent of changing the venue of the severed third-party action to Suffolk County. The venue change was timely sought by Hermitage based on improper designation of venue. Inasmuch as neither Hermitage nor its insured, the third-party plaintiff, had its principal place of business in the Bronx, venue was not properly placed in Bronx County ( see Kearns v Johnson, 238 AD2d 121), and should have been transferred in accordance with Hermitage's request to Suffolk County, where third-party plaintiff has its principal place of business. We note in this connection that the insured never cross-moved to retain venue in Bronx County or to transfer venue to an alternative county ( see e.g. Herrera v A. Pegasus Limousine Corp., 34 AD3d 267; Montilla v River Park Assoc., 282 AD2d 389).