Stratis v Corbett

[*1] Stratis v Corbett 2006 NY Slip Op 50594(U) [11 Misc 3d 1076(A)] Decided on April 10, 2006 Supreme Court, Richmond County Minardo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 10, 2006
Supreme Court, Richmond County

Eugene Stratis, Plaintiff,

against

Teddy Corbett, WOHL & O'MARA, LLP, MICHAEL SCHODOWSKI, ANTHONY PELLICI and JOHN SPALL, Defendants.



100306/05

Philip G. Minardo, J.

Plaintiff moves for an order granting him a default judgment against three of the defendants to wit: Teddy Corbett, Michael Schodowski, and Anthony Pellici, for failing to answer the complaint pursuant to CPLR §3215. Plaintiff also moves for an order consolidating the above matter with Eugene Stratis v. Allstate Insurance Company index number 101764/05 for joint trial pursuant to CPLR §602(a).

The facts as alleged by the plaintiff are as follows: that on November 12, 2003 plaintiff was a passenger in a motor vehicle operated by defendant Teddy Corbett. Corbett lost control of the vehicle and struck a parked car causing plaintiff to be injured. A short time thereafter an emergency medical service ambulance arrived at the accident scene and proceeded to transport plaintiff to a hospital. On the way to the hospital the ambulance was involved in a head-on collision with a motor vehicle operated by defendant John Spall. This second accident further injured or aggravated his prior injuries incurred in the Corbett accident to wit: a fractured left shoulder, herniated lumbar disc and partially severed tongue. A subsequent investigation [*2]revealed that the Corbett vehicle was uninsured.[FN1] Plaintiff then commenced the instant lawsuit naming all the parties involved in both accidents as defendants. Allstate then reneged on its prior representation that it would cover defendant Corbett, leaving Corbett uninsured. Therefore, plaintiff commenced a second action under his grandmother's uninsured motorist automobile insurance policy naming Allstate as a defendant under index number 101764/2005.

It is plaintiff's argument that it is critical for the fair prosecution of his claims that both the first and second motor vehicle accidents be consolidated for a joint trial on damages to avoid possible inconsistent verdicts. Concerning the Corbett accident, plaintiff contends it is possible that the first jury may find plaintiff's injuries were caused by the second accident between the ambulance and the Spall vehicle. A second jury on the ambulance/Spall accident could find plaintiff's injuries were caused by the first accident with the Corbett vehicle leaving the plaintiff inadequately and unfairly compensated. Plaintiff also argues he was unable to undergo an adequate medical examination or undertake diagnostic tests during the short time between the happening of the first and second accidents making it difficult to determine which accident caused which injuries.

Fearing possible inconsistent verdicts, plaintiff argues he would be highly prejudiced if this Court did not consolidate the two motor vehicle accidents for a joint trial on damages.

Defendants Wohl and O'Mara, LLP and John Spall argue that to have Allstate as a party defendant would be prejudicial to them because the jury may be tainted by knowing there is insurance coverage by them. The law is well-settled in New York that the issue of the existence of insurance is not to be considered by a jury in a personal injury action. In fact, its mere reference may result in prejudice to the defendants by the jury. (see Christensen v.Weeks, 15 AD3d 330 (2nd Dept. 2005); Kelly v. Yannotti, 4 NY2d 603 (1958).)

This court notes the second action against Allstate is not a declaratory judgment action as argued by defendants Wohl and O'Mara and Spall but merely a contractual action to recover uninsured motorist benefits for personal injuries. Therefore many of the cases cited by defendants are inapplicable. This Court further notes the defendant Allstate does not oppose consolidating the two actions.

"It is well established that the question of whether to direct a joint trial rests with the sound discretion of the trial court. Where there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right. (Ryckman v. Schlessinger-Levi-Polatsch-Tydings, M.D., P.C., 225 AD2d 603 (2nd Dept. 1996); see CPLR §602).

Weighing the prejudice between the parties this court finds that the plaintiff would be substantially prejudiced because of the possibility of inconsistent verdicts. (see Progressive Insurance Company v. Countrywide Insurance Company, 10 AD3d 518 (1st Dept. 2004).) This is especially so here where there are common issues between the two actions and the alleged interrelated injuries as well as the issue of exacerbation of preexisting injuries.

Accordingly, the plaintiff's motion to consolidate the instant action with Eugene Stratis v. [*3]Allstate Insurance Company index number 101764/05 is granted to the extent the issue of damages shall be tried jointly. The issue of liability shall be separately tried.

Further, upon a review of the affidavits of service this Court finds the defendants Teddy Corbett, Michael Schodowski and Anthony Pellici appear to have been properly served with a summons and complaint and have failed to answer same.

Accordingly, plaintiff's motion for a default judgment against these defendants is granted. Inquest to be held at the time of trial.

This shall constitute the decision and order of the Court.

E N T E R,

_____________________________

J. S. C. . Footnotes

Footnote 1:Plaintiff had initially served a demand to arbitrate on Allstate Insurance Company which was withdrawn when Allstate represented that the Corbett vehicle would be covered by an insurance motor vehicle policy held by Kathleen Corbett.