Robles v Microtech Contr. Corp.

Robles v Microtech Contr. Corp. 2011 NY Slip Op 09038 Decided on December 15, 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 December 15, 2011
Tom, J.P., Friedman, Freedman, Richter, Manzanet-Daniels, JJ.
6372N 8242/05 83695/09 84140/09

[*1]Starlene Robles, et al., Plaintiffs,

v

Microtech Contracting Corp., et al., Defendants. [And a Third-Party Action] Quest Communications Company, LLC, etc., Second Third-Party Plaintiff-Appellant, Kajima Construction Services, Inc., et al., Second Third-Party Defendants-Respondents.




Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C.,
Albany (Jessica A. Desany of counsel), for appellant.
Malapero & Prisco LLP, New York (Won J. Choi of counsel),
for respondents.

Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered October 8, 2010, which granted the motion of second third-party defendants Tokio Marine & Nichido Fire Insurance Co., Ltd., f/k/a Tokio Marine and Fire Insurance Company, Limited, and Tokio Marine Management, Inc. (collectively Tokio Marine) to sever the second third-party action from the main action, unanimously modified, on the facts, to the extent of deleting so much of the order as states "the fourth-party action is severed from the main action" and substituting therefor "the second third-party action against Tokio Marine is severed from the main action," and otherwise affirmed, without costs.

The court properly exercised its discretion in severing the second third-party action against Tokio Marine from the main action to avoid the prejudice that would result from the [*2]jury's awareness of the existence of liability insurance (see Kelly v Yanotti, 4 NY2d 603, 607 [1958]; Chunn v New York City Hous. Auth., 55 AD3d 437 [2008]).

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

ENTERED: DECEMBER 15, 2011

CLERK