Rosado v Briarwoods Farm, Inc.

[*1] Rosado v Briarwoods Farm, Inc. 2006 NY Slip Op 52331(U) [13 Misc 3d 1243(A)] Decided on November 29, 2006 Supreme Court, Orange County Horowitz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 29, 2006
Supreme Court, Orange County

Christine Rosado, individually and as Administratrix of the Estate of Leonardo Louis Rosado, Plaintiff,

against

Briarwoods Farm, Inc., Israel Herskowitz, Yosef Herskowitz, and Eliezer Hershowitz, Individually and d/b/a Herskowitz Family Enterprises Nad Monsey Lumber & Building Supply Corp. and Eastview Builders, Inc., Defendants.



5596/2001

Lawrence I. Horowitz, J.

Plaintiff brings an application pendente lite for a bifurcated trial of the within negligence matter, defendants oppose the application [FN1].

The parties hereto base their request, to either bifurcate the within trial or oppose bifurcation, on Uniform Rule §202.42 of the New York Trial Courts by which "Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action." 22 NY ADC §202.42. The parties base their arguments in favor or in opposition to bifurcation on whether or not wrongful death is personal injury or not.

As the Second Department has made clear in this case, the matter before the Court is a negligence case. Unquestionably negligence cases can result in damage awards for a variety of harms, including personal injury, property damage or as the case here wrongful death. Thus, whether wrongful death is a personal injury or not [FN2] does not end the Court's analysis.

As helpful as the arguments provided by counsel have been to the Court, this Court believes that the proper starting point is the CPLR.

CPLR §603 provides that "[i]n furtherance of convenience or to avoid prejudice the court may order a separate trial of any claim, or of any separate issue". CPLR §603. Thus, per the CPLR, any determination on bifurcation is within the trial court's sound discretion. See, Johnson v. Hudson River Const. Co., Inc. 13 AD3d 864, *865, 786 NYS2d 250, 251 (3rd Dept., 2004), citing, Barron v. Terry, 268 AD2d 760, 761, 702 NYS2d 171 (3rd Dept., 2000). "[I]n no area is a trial court's discretion entitled to more deference than in the control of its calendar." Id.

A bifurcated trial is normally appropriate in a negligence case, because as "a general rule, questions of liability and damages in a negligence action represent distinct and severable issues which should be tried separately." Barrera v. Skaggs-Walsh, Inc., 279 AD2d 442, 442, 719 NYS2d 90, 91 (2nd Dept., 2001). A trial on the issues of both liability and damages should be held only where the nature of the injuries has an important bearing on the issue of liability, thus a "party opposing bifurcation and seeking a unified trial on those issues must show that the nature of the injuries has an important bearing' on the issue of liability. Id., citing, Martinez v. Town of Babylon, 191 AD2d 483, 594 NYS2d 357 (2nd Dept., 1993).

Thus in negligence cases sounding in medical malpractice or other cases where either the [*2]"nature of injuries has important bearing on question of liability, or where issues of liability and damages are so intertwined", will bifurcation not be ordered or will evidence of damages be permitted during the liability phase of a bifurcated trial. See, Diorio v. City of New York, 232 AD2d 367, 648 NYS2d 618 (2nd Dept., 1996), leave to appeal denied, 89 NY2d 807, 655 NYS2d 887, 678 NE2d 500; Dobress by Dobress v. North Shore University Hosp., 178 Misc 2d 205, 206 (N.Y.Sup., 1998)["it has been generally recognized that separate trials should be ordered in negligence actions unless the injuries are intertwined with the question of liability..."]

In most other types of negligence cases the nature and extent of the injuries has no bearing on liability and thus bifurcation is the preferred course. Such is certainly the case in the within matter.

Indeed, wrongful death cases are the subject of bifurcated trials, as it "is well established that the liability issue and the damage issue in an action . . . to recover for personal injuries or wrongful death . . . may be tried and determined separately.'" Garcia v. Herald Tribune Fresh Air Fund, Inc., 51 AD2d 897, 898, 380 NYS2d 676, 679 (1st Dept., 1976) citing Mercado v. City of New York, 25 AD2d 75, 265 NYS2d 834 (1st Dept. 1966).

Thus, this Court hereby ORDERS a bifurcated trial, the issues of liability and damages shall be severed from each other, and the issue of liability shall be tried first. 22 NY ADC §202.42(b). The parties hereto shall select a Jury on December 4, 2006 as previously scheduled.

The foregoing constitutes the Decision and Order of this Court.

E N T E R

_________________________________HON. LAWRENCE I. HOROWITZ

SUPREME COURT JUSTICE

Dated: November 29, 2006

Goshen, New York Footnotes

Footnote 1:While the parties hereto seek in limine relief on other matters in addition to the bifurcation issue, this Decision and Order is solely limited to the bifurcation and a decision on the remaining issues is reserved.

Footnote 2:This Court acknowledges that its esteemed Queens County trial court colleagues in Dobress by Dobress v. North Shore University Hosp., 178 Misc 2d 205, 208 (N.Y.Sup. 1998), relied on by Defendant Briarwoods, or Barracca v. St. Francis Hosp., 166 Misc 2d 726, 727 (N.Y.Sup., 1995), relied on by Plaintiff, disagreed whether or not "wrongful death" was in fact a "personal injury", but finds the holding in both those cases irrelevant to the within proceeding.