Cruz v Taino Constr. Corp.

Cruz v Taino Constr. Corp. 2007 NY Slip Op 02482 [38 AD3d 391] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Jesus Cruz et al., Respondents,
v
Taino Construction Corp. et al., Defendants and Third-Party Plaintiffs-Appellants-Respondents. Hermitage Insurance Company, Third-Party Defendant-Respondent-Appellant.

—[*1] R. Kenneth Jewell, New York, for appellants-respondents.

Mirman, Markovits & Landau, P.C., New York (Scott Wunderlich of counsel), for respondents.

Gold, Stewart, Kravatz, Benes & Stone, LLP, Westbury (Jeffrey B. Gold of counsel), for respondent-appellant.

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about December 2, 2005, which granted the motion by third-party defendant Hermitage Insurance Company (Hermitage) for severance of the third-party action and denied its motion for a change of venue in the same action, unanimously modified, on the law, the motion granted to the extent of directing that the venue of the severed third-party action be transferred to Suffolk County, and otherwise affirmed, without costs.

The motion court properly severed the main and third-party actions, since those actions do not involve common questions of law or fact. The issue in the third-party action is whether Hermitage received contractually timely notice of the claim, while the main action involves questions of negligence (see Dreizen v Morris I. Stoler, Inc., 98 AD2d 759 [1983]). Further, "[i]t is generally recognized that, even where common facts exist, it is prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims" (Medick v Millers Livestock Mkt., 248 AD2d 864, 865 [1998] [internal quotation marks and citation omitted]; Kelly v Yannotti, 4 NY2d 603, 607 [1958]).

Hermitage's motion should have been granted to the further extent of changing the venue of the severed third-party action to Suffolk County. The venue change was timely sought by Hermitage based on improper designation of venue. Inasmuch as neither Hermitage nor its insured, the third-party plaintiff, had its principal place of business in the Bronx, venue was not properly placed in Bronx County (see Kearns v Johnson, 238 AD2d 121 [1997]), and should [*2]have been transferred in accordance with Hermitage's request to Suffolk County, where third-party plaintiff has its principal place of business. We note in this connection that the insured never cross-moved to retain venue in Bronx County or to transfer venue to an alternative county (see e.g. Herrera v A. Pegasus Limousine Corp., 34 AD3d 267 [2006]; Montilla v River Park Assoc., 282 AD2d 389 [2001]). Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.