Global Imports Outlet, Inc. v Signature Group, LLC

Global Imports Outlet, Inc. v Signature Group, LLC 2011 NY Slip Op 05565 Decided on June 28, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 28, 2011
Andrias, J.P., Friedman, Renwick, DeGrasse, Abdus-Salaam, JJ.
5457N 602695/07

[*1]Global Imports Outlet, Inc., etc., Plaintiff-Respondent,

v

The Signature Group, LLC, Defendant-Appellant, 240 Grand Studio, Inc., etc., et al., Defendants.



 
Keidel, Weldon & Cunningham, LLP, White Plains (Jeffrey A.
Lesser of counsel), for appellant.
Frankfort & Koltun, Deer Park (Robert D. Frankfort of
counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered July 2, 2010, which, to the extent appealed from as limited by the briefs, denied defendant The Signature Group, LLC's motion to sever plaintiff's insurance procurement claim against it from the property damage claim against the other defendants, unanimously affirmed, with costs.

The motion court providently exercised its discretion in denying the motion, since Signature failed to demonstrate that a joint trial would result in substantial prejudice (see CPLR 603; Geneva Temps, Inc. v New York World Communities, Inc., 24 AD3d 332, 334 [2005]). An insurance company or broker would be prejudiced if an insurance-coverage claim and a negligence claim were tried before the same jury (see Kelly v Yannotti, 4 NY2d 603 [1958]; Hoffman v Kew Gardens Hills Assoc., 187 AD2d 379 [1992]; Transamerica Ins. Co. v Tolis Inn, 129 AD2d 512 [1987]; see also Taylor v Fazio, 291 AD2d 293 [2002]). However, this case does not involve a dispute about insurance coverage. Rather, it involves the failure to procure insurance coverage. Further, there is no claim that additional discovery is required, or that the trial would otherwise be delayed if the motion is denied (see Neckles v VW Credit, Inc., 23 AD3d 191, 192 [2005]). Nor is there any alleged "threat of jury confusion" based on the number of issues or witnesses (Witherspoon v New York City Hous. Auth., 238 AD2d 276, 276 [1997]). Lastly, plaintiff would be prejudiced by severance. Indeed, Signature filed its motion after the [*2]note of issue was filed and more than a year after the issuance of an order consolidating this action with another related action (cf. Kelly, 4 NY2d at 605, 607-608).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 28, 2011

CLERK