Opinion
December 15, 1966
Order entered August 30, 1965, denying the third-party defendant-appellant's motion for a severance of the third-party action, unanimously reversed, on the law, on the facts, and in the exercise of discretion, with $30 costs and disbursements to said appellant, and the motion therefor granted. The third-party complaint is grounded on an insurance policy allegedly indemnifying the third-party plaintiff against the tort claim underlying the complaint. Plaintiff's action will be tried before a jury. The fact of insurance relative to the occurrence complained of by plaintiff will be prejudicial as a matter of law as to the third-party defendant-appellant. ( Kelly v. Yannotti, 4 N.Y.2d 603; Rauch v. Berlin, 24 A.D.2d 976.)
Concur — Breitel, J.P., Rabin, McNally, Stevens and Steuer, JJ.