Vecciarelli v King Pharms., Inc.

Vecciarelli v King Pharms., Inc. 2010 NY Slip Op 02658 [71 AD3d 595] March 30, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Loretta Vecciarelli et al., Appellants,
v
King Pharmaceuticals, Inc., et al., Respondents.

—[*1] Simon, Eisenberg & Baum, LLP, New York (Eric M. Baum of counsel), for appellants.

Jackson Lewis, LLP, White Plains (Mary A. Smith of counsel), for respondents.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered November 3, 2008, which granted defendants' motion for severance and separation of the action into five individual actions, with related relief, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the motion denied without prejudice to renewal after completion of discovery.

Where there is "a common nucleus of facts," severance requires a showing that a joint trial will result in "prejudice or substantial delay" (see Sichel v Community Synagogue, 256 AD2d 276, 276 [1998]). Defendants in this employment discrimination action had the burden of making that showing (see Andresakis v Lynn, 236 AD2d 252 [1997]) in seeking severance immediately after service of their answers. That burden was not sustained.

All of the plaintiffs were in the same department of the corporate defendant, and all were fired within the same year. All but one plead common-law torts. While plaintiffs' territories comprised diverse areas of New York and Connecticut, it has not yet been shown whether or not the discriminatory conduct occurred in diverse counties or at the home office of the corporate defendant, nor is there any showing that a geographically diverse group of witnesses will have to participate in the case. All but one of the plaintiffs allege conduct by the two individual defendants. All of the plaintiffs allege an overall pattern and practice of discrimination to a degree at this initial postpleading phase.

The joint trial format can serve judicial efficiency and avoid the risk of inconsistent verdicts (Williams v Property Servs., 6 AD3d 255 [2004]). It is too early here for a determination that such a format will cause prejudice or substantial delay, or that there are "only the most [*2]superficial common factual grounds to be explored" among the five cases (cf. Hickson v Mt. Sinai Med. Ctr., 87 AD2d 527, 527 [1982]). Concur—Saxe, J.P., Catterson, Moskowitz, Freedman and RomÁn JJ.