McDavid v. Gunnigle

— Order, Supreme Court, New York County, entered June 10, 1975, which although denying plaintiff’s motion for an order of consolidation, directed instead that the actions be tried jointly pursuant to CPLR 602 (subd [a]), unanimously reversed, on the law and in the exercise of discretion, without costs and disbursements, and separate trials directed. Action No. 1, commenced on or about March 2, 1974, is for the recovery of money damages for personal injuries allegedly sustained' by plaintiff while a passenger in an automobile operated by defendant Gunnigle which was involved in a collision with two vehicles operated by two other defendants. Action No. 2, commenced on or about June 3, 1974, is for the recovery of money damages based upon an alleged fraud by the defendant Travelers Insurance Company, the liability insurer of defendant Gunnigle, in their obtaining an infant’s compromise settlement of the personal injury claim of the plaintiff on or about November 29, 1971 in an action in the Supreme Court of Nassau County against Gunnigle. Patently, the circumstances delineated in the record herein mandate separate trials of the two actions. Action No. 2 directly concerns an issue of insurance coverage whereas Action No. 1 involves adjudication of the negligence issue. To allow this latter issue to be tried before the same jury charged with the duty of determining an issue which unavoidably relates to insurance coverage would be error. "The specific knowledge of the dispute over insurance coverage would of necessity temper the thinking of the jury and unduly influence their verdict. The prejudice inherent in a situation of this sort should be avoided. (Kelly v Yannotti, 4 NY2d 603; Strauss v Bennett Bros. Corp., 27 AD2d 528; Schwartz v Jonathan Woodner & Co., 40 AD2d 1027)” (D’Apice v Tishman 919 Corp., 43 AD2d 925; see Burton v Niagara Mohawk Power Corp., 280 App Div 356). Concur — Murphy, J. P., Lupiano, Capozzoli, Lane and Nunez, JJ.