Opinion
March 1, 1976
Order, Supreme Court, New York County, entered September 11, 1975, inter alia, denying the motion of appellants, the defendants in Action No. 1 and plaintiffs in Action No. 2, for an order severing its cause of action against defendant the Continental National Insurance Group in Action No. 2 and upon such severance consolidating the balance of the two actions, unanimously modified, on the law and in the exercise of discretion, to the extent of severing appellants' first cause of action and consolidating the balance of said actions. Except as so modified, said order is affirmed, without costs or disbursements. The appeal from a prior order of said court entered June 5, 1975, denying a motion for consolidation is unanimously dismissed, as moot, without costs or disbursements. The denial of the severance motion below was made on constraint of an earlier decision by another Justice of the same court. We are not similarly bound by such prior order. Moreover, the original order denying severance was predicated, in part, on the fact that Action No. 1 was then on the eve of trial. Thereafter, plaintiffs successfully moved to strike said action from the Trial Calendar and appellants amended their complaint in Action No. 2 to plead a cause for Dole-Dow apportionment (Dole v Dow Chem. Co., 30 N.Y.2d 143) in addition to their cause of action for breach of an agreement to procure products liability insurance. The determination made hereon will facilitate the determination of fault on the main cause of action and remove the potential prejudice to the third-party defendants of having the same jury hear the insurance coverage issue raised in the cause severed. (Kelly v Yannotti, 4 N.Y.2d 603.) In view of the age of this action, an early trial is indicated and should be provided for in the order entered hereon. Settle order on notice.
Concur — Murphy, J.P., Birns, Silverman, Lane and Lynch, JJ.