From Casetext: Smarter Legal Research

Gittino v. LCA Vision, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Jan 16, 2003
301 A.D.2d 847 (N.Y. App. Div. 2003)

Opinion

92213

January 16, 2003.

Appeal from an order of the Supreme Court (Malone Jr., J.), entered December 4, 2001 in Albany County, which granted defendants' motions for severance of plaintiffs' claims.

Carroll, Carroll, Davidson Young P.C., Syracuse (Eugene B. Young of counsel), for appellants.

Phelan, Burke Scolamiero L.L.P., Albany (Timothy S. Brennan of counsel), for LCA Vision, Inc., respondent.

Carter, Conboy, Case, Blackmore, Maloney Laird P.C., Albany (Jessica A. Desany of counsel), for Robert E. Brass, respondent.

Before: Mercure, J.P., Crew III, Peters, Spain and Lahtinen, JJ.


MEMORANDUM AND ORDER


On April 1, 2000, defendant Robert E. Brass performed laser surgery upon plaintiffs at the business premises of defendant LCA Vision, Inc. (hereinafter LCA) in Albany County. Due to injuries allegedly sustained by plaintiffs as a result of the surgery, the instant action was commenced against defendants. Following joinder of issue, Brass moved, and LCA cross-moved, for an order pursuant to CPLR 603 severing plaintiffs' claims. Supreme Court granted defendants' respective motions, resulting in this appeal.

Initially, we note that "[s]everance, under CPLR 603, is a matter of judicial discretion which will not be disturbed * * * absent an abuse [thereof] * * * or [a showing of] prejudice to a substantial right of the party seeking severance" (Finning v. Niagara Mohawk Power Corp., 281 A.D.2d 844, 844). It has been found appropriate where "individual issues predominate, concerning particular circumstances applicable to each plaintiff * * * [and there] is the possibility of confusion for the jury" (Bender v. Underwood, 93 A.D.2d 747, 748 [citations omitted]; see Abbondandolo v. Hitzig, 282 A.D.2d 224, 225).

Here, plaintiffs allege causes of action sounding in medical malpractice, lack of informed consent and breach of warranty. They contend that they were injured by the same piece of medical equipment used by the same physician on the same date. However, such allegations fail to take into account the fact that plaintiffs had different medical histories, were taking different medications, had different experiences with the use of eyeglasses and contact lenses, had different eye conditions and were engaged in separate communications with medical professionals regarding the procedure. These differences establish that individual issues will predominate in the taking of proof and in the presentation of their respective cases at trial. In our view, a joint trial could unduly prejudice defendants and lead to juror confusion (see Soule v. Norton, 299 A.D.2d 827, 750 N.Y.S.2d 692). Accordingly, we find no abuse of discretion in Supreme Court's severance of plaintiffs' claims.

Mercure, J.P., Crew III, Spain and Lahtinen, JJ., concur.

ORDERED that the order is affirmed, with one bill of costs.


Summaries of

Gittino v. LCA Vision, Inc.

Appellate Division of the Supreme Court of New York, Third Department
Jan 16, 2003
301 A.D.2d 847 (N.Y. App. Div. 2003)
Case details for

Gittino v. LCA Vision, Inc.

Case Details

Full title:GERALDINE GITTINO et al., Appellants, v. LCA VISION, INC., Doing Business…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Jan 16, 2003

Citations

301 A.D.2d 847 (N.Y. App. Div. 2003)
753 N.Y.S.2d 579

Citing Cases

Torres v. 120 Broadway Holdings

In light of the aforementioned, that branch of Percuin's cross motion seeking dismissal of Broadway's motion…

Pryor v. Serrano

There are therefore significant differences in the nature of proof of notice to the County defendants…