Opinion
2003-06434.
Decided May 3, 2004.
In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated April 16, 2003, which denied its motion to sever the third-party action and add the plaintiff as a third-party defendant.
Fishman Tynan, Merrick, N.Y. (John Fishman and Maureen Tynan of counsel), for third-party defendant-appellant.
Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, WILLIAM F. MASTRO, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, and the motion is granted.
The Supreme Court erred in denying the appellant's motion to sever the third-party action and add the plaintiff as a third-party defendant. The two actions do not involve common questions of law or fact ( see Dreizen v. Morris I. Stoler, Inc., 98 A.D.2d 759). Moreover, to ensure that there is no prejudice to the third-party defendant insurance company, the main negligence action and the third-party insurance coverage action should be tried separately ( see CPLR 1010; Kelly v. Yannotti, 4 N.Y.2d 603; Schorr Bros. Dev. Corp. v. Continental Ins. Co., 174 A.D.2d 722; Winstead v. Uniondale Union Free School Dist., 170 A.D.2d 500; Dreizen v. Morris I. Stoler, Inc., supra).
ALTMAN, J.P., KRAUSMAN, GOLDSTEIN and MASTRO, JJ., concur.