Motions to Sever and Bifurcate

• Pages: 267-304
• Author: Carl T. Grasso,Edward L. Birnbaum,Ariel E. Belen

MOTIONS TO SEVER/

BIFURCATE

8-1

CHAPTER 8

MOTIONS TO SEVER AND BIFURCATE,

AND CHANGING PLACE OF TRIAL

I. SEVERANCE

A. General Points

§8:01 Purpose

§8:02 Authority

§8:03 Any Party May Move to Sever

§8:04 Discretion to Sever Exercised Sparingly

§8:05 Common Issues of Law or Fact: Severance Improper

B. Severance in Specific Situations

1. Multiple Parties

§8:10 Multiple Defendants: Severance After Default

§8:11 Multiple Defendants: Severance Proper

§8:12 Multiple Defendants: Severance Improper

§8:13 Multiple Plaintiffs Versus Single Defendant

§8:14 Consolidation Not Allowed Per Contract

2. Counterclaims

§8:20 When Court May Sever

3. Third Party Claims

§8:30 Severance When Asserted Shortly Before Trial

§8:31 No Severance When Issues Are Related and There Is Time for Discovery

§8:32 Third Party Claims Introducing New Questions

§8:33 Third Party Insurance and Indemnity Claims

C. Motion for Separate Trial of Issues

§8:40 Reason to Seek

§8:41 Case Examples: Separate Trial Proper

§8:42 Case Examples: Separate Trial Not Proper

D. Procedure

§8:50 Timing

§8:51 Making the Motion

§8:52 Opposing Motion

II. BIFURCATION

A. General Points

§8:60 Purpose and Authority

§8:61 Either Party May Raise

§8:62 Court May Order Sua Sponte

§8:63 Trial Court’s Discretion

MOTIONS TO SEVER/

BIFURCATE

New York Trial Notebook 8-2

§8:64 Change of Venue

§8:65 Bifurcation in Punitive Damage Cases

B. Bifurcation in Negligence and PI Actions

§8:70 Bifurcation Is General Rule

§8:71 Rules Encourage Bifurcation in PI Cases

§8:72 No Bifurcation When Nature of Injuries Bears on Liability

§8:73 Exception: Bifurcation May Be Permitted Even When Issues Are Interwoven

C. Tactics

§8:80 Defense: When Bifurcation Is Desirable

§8:81 Defense: When Bifurcation Is Undesirable

§8:82 Plaintiff: When Bifurcation Is Desirable

D. Procedure

§8:90 Timing

§8:91 Making the Motion

§8:92 Opposing Motion

§8:93 Effect of Court’s Failure to Rule

§8:94 Continuance to Prepare for Bifurcation

E. Order of Proceedings on Bifurcation

§8:100 Liabilit y Normally Precedes Damages

§8:101 Voir Dire When Both Phases Tried Before Same Jury

§8:102 Supplemental Opening Statement

§8:103 Continuance of Damages Phase Af ter Finding of Liability

§8:104 Reverse Bifurcation

§8:105 Trifurcation

III. CHANGING PLACE OF TRIAL

§8:106 In General

§8:107 Grounds and Timing for Change of Place of Trial

§8:108 Venue When Cases Are Consolidated or Joined for Trial

FORMS

Form 8:10 Notice of Motion to Sever Third Party Action

Form 8:20 Affirmation in Support of Motion to Sever Third Party Action

Form 8:30 Order Severing Third Party Action

Form 8:40 Notice of Motion for Unified Trial

Form 8:50 Affirmation in Support of Motion for a Unified Trial

Form 8:60 Affirmation in Support of Cross-Motion for a Bifurcated Trial

and in Opposition to Plaintiff’s Motion for a Unified Trial

Form 8:70 Order Granting a Unified Trial

MOTIONS TO SEVER/

BIFURCATE

8-3 Motions to Sever and Bifurcate, and Changing Place of Trial §8:03

I. SEVERANCE

A. General Points

§8:01 Purpose

A motion to sever requests that the court order separate trials of claims or issues involved in a single lawsuit.

Some of the principal objectives of such a motion are:

• To avoid prejudice to a party that may result from the jury’s hearing evidence potentially relevant to one

claim or issue but not to others, or relevant as against one party but not as to others.

• To avoid prejudice to recently sued third parties who may not have had an opportunity to do discovery

and prepare for trial.

• To avoid juror confusion that may arise from having to hear and determine multiple claims, or claims

between multiple parties.

• To make the case more manageable.

• To allow the case to go forward where litigation may be stayed as to some parties (e.g., parties in bank-

ruptcy or insurance companies in liquidation).

§8:02 Authority

The court may order a separate trial of any claim or of any separate issue in furtherance of convenience or

to avoid prejudice. [CPLR 603.] The court may order the trial of any claim or issue before the trial of the others.

[CPLR 603.] Thus the court may determine the sequence in which claims or issues are tried.

Multiple parties. If parties have been permissively joined in one action, but not all plaintis are asserting claims

against all defendants, the court may order separate trials to prevent prejudice. [CPLR 1002(c). For severance of

cases involving multiple parties, see §8:10 .]

Third party claims. The court may in its discretion order separate trials of third party claims or issues, considering whether

the third party controversy “will unduly delay the determination of the main action or prejudice the substantial rights of any

party.” [CPLR 1010. For severance of third party claims, see §8:30.] Appellate courts are hesitant to overturn denials of requests

to sever third party actions “absent a showing of prejudice to a substantial right of the party seeking the severance.” [Padilla

v. Absolute Realty, Inc., 195 AD3d 422, 424, 150 NYS3d 243 (1st Dept 2021) (third party defendant C’s request to sever the

third-party actions from plainti’s damages trial was properly denied); Nieto v. 1054 Bushwick Ave, LLC, 219 AD3d 754,

195 NYS3d 85 (2d Dept 2023) (plainti construction worker sued owner and general contractor under Labor Law §§ 200,

240 and 241; GC added as a third party plainti’s employer SE; Supreme Court improperly severed the third party action;

although there was substantial discovery outstanding in the third party action, there was also still outstanding discovery in

the main action and there was no evidence that a single trial would result in prejudice to a substantial right of any party.)]

NOTE:

As should be evident, an appellate court can order claims severed for trial. In 93rd Building Corp. v. Hefti,

224 AD3d 583 (1st Dept 2024), Supreme Court improperly granted landlord’s motion to strike tenant’s jury

trial demand, as the lease, which contained the jury waiver, expressly excepted claims for personal injury

and property damage. “Therefore, the tenant’s counterclaims asserting personal injury and property damage

should be severed from this proceeding and tried separately.”

NOTE:

Actions that have been joined for discovery and trial may still be dealt with individually, as for example, a motion

for summary judgment in one of the actions. See, e.g. Berlin v. American United Transportation, Inc., 216 AD3d 1134,

190 NYS3 418 (2d Dept 2023) (trafc collision, defendant driver in action no. 2 obtained summary judgment as

to himself by showing that the other driver, who failed to observe a stop sign, was the sole cause of the accident.)

§8:03 Any Party May Move to Sever

Any party may move to sever. As a practical matter, severance is more often sought by defendants than plain-

tis. Often counsel for plaintis will join multiple parties and claims, to avoid the expense of multiple trials, and

in the hopes of resolving all issues sooner; whereas defendants are often sensitive to the possibility of prejudice