Opinion
December 13, 1965
In an action to recover damages for personal injuries allegedly sustained as a result of a fall on a defective public sidewalk, in which three other actions were instituted to recover over, based on an express agreement of indemnity and/or common-law claims of indemnity, and in which P. Chimento Co. Inc., as sixth-party plaintiff, instituted an action against Citizens Casualty Company of New York, as sixth-party defendant, to recover over and for counsel fees and expenses, the sixth-party defendant appeals from so much of an order of the Supreme Court, Kings County, entered May 25, 1965, as denied its motion to sever the sixth-party action from the other actions and to direct a separate trial thereof. The order denied the motion without prejudice to a similar application addressed to the discretion of the trial court. Order, insofar as appealed from, reversed, with $10 costs and disbursements, and motion granted without costs. The sixth-party defendant had issued a comprehensive personal liability and property damage policy to the sixth-party plaintiff and, asserting in part that it had received no notice of the claim or accident until more than four years had elapsed, it disclaimed liability. The motion was based on the ground that the trial of the sixth-party action with the causes of action of the other parties plaintiff would prejudice the rights of the sixth-party defendant. In our opinion, a trial of all the causes of action before the same jury, involving the disclosure as to the insurance, would subject the sixth-party defendant to some prejudice ( Kelly v. Yannotti, 4 N.Y.2d 603). The language in Oltarsh v. AEtna Ins. Co. ( 15 N.Y.2d 111) should be considered in the light of the subject matter therein. In our opinion, so considered, it was not intended to overrule Kelly. Brennan, Acting P.J., Hill, Rabin, Hopkins and Benjamin, JJ., concur.