Motions to Sever and Bifurcate

• Author: Edward L. Birnbaum/Carl T. Grasso/Ariel E. Belen
• Pages: 245-280

MOTIONS TO SEVER/

BIFURCATE

CHAPTER 8

MOTIONS TO SEVER

AND BIFURCATE, AND

CHANGING PLACE OF TRIAL

§8:01 New York Trial Notebook 8-2

MOTIONS TO SEVER/

BIFURCATE

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 bankruptcy 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

plaintiffs 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 ff.]

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.]

§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 plaintiffs. Often counsel for plaintiffs 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 if forced

to defend against multiple claims or issues in one

proceeding. Third party defendants often seek

severance, arguing they have inadequate time for

trial preparation. [See §8:30.] Sometimes plaintiffs

seek a severance to move the case forward, e.g., if

proceedings are stayed as against some defendants

and not others. [See §8:11.]

§8:04 Discretion to Sever Exercised

Sparingly

The CPLR promotes joinder of all parties

connected with an action. [See CPLR 601 (joinder

of claims); CPLR 602 (consolidation); CPLR 1002

(permissive joinder of parties); and CPLR 1007

(third party practice).] “Severance, under CPLR

603, is a matter of judicial discretion which will

not be disturbed on appeal absent an abuse of

discretion or prejudice to a substantial right of

the party seeking severance.” [Finning v. Niagara

Mohawk Power Corp., 281 AD2d 844, 844, 722

NYS2d 613, 615 (3d Dept 2001); see County

of Broome v. Aetna Casualty & Surety Co., 126

AD2d 818, 820, 511 NYS2d 147, 148 (3d Dept

1987) (in a declaratory judgment action, severance

of insurance company in receivership was upheld;

“[t]here being no clear abuse of judicial discretion

shown, interference on our part with Supreme

Court’s order would be inappropriate.”); Katz v.

Mount Vernon Dialysis, LLC, 121 AD3d 856,

994 NYS2d 661 (2d Dept 2014) (one defendant

declared Chapter 11 bankruptcy, so the action

was automatically stayed as to it per 11 USC

§362(a), which did not extend to the non-bankrupt

defendant; it was within the trial court’s discretion

to grant the 86-year-old plaintiff’s motion to sever

the action against the bankrupt defendant and

proceed against the non-bankrupt defendants.);

Caruana v. Padmanabha, 77 AD3d 1307, 909

NYS2d 607 (4th Dept 2010) (Supreme Court

8-3 Motions to Sever and Bifurcate §8:04

MOTIONS TO SEVER/

BIFURCATE

properly granted the 86-year-old plaintiff’s motion

to sever her action for medical malpractice from

her husband H’s derivative cause of action where

H died during the pendency of the action; under the

circumstances, the action could proceed without

substitution of a personal representative for H.).]

In the absence of undue delay or prejudice,

courts should avoid granting severances, since

the purpose of the joinder and consolidation rules

is to promote efficiency and avoid the necessity

of multiple trials. Discretion to sever should

be exercised sparingly. [Schanley v. Callanan

Industries, Inc., 54 NY2d 52, 57, 444 NYS2d 585,

588 (1981). See, e.g., J & A Vending, Inc. v. J.A.M.

Vending, Inc., discussed below. See also Hough v.

Hicks, 160 AD2d 1114, 554 NYS2d 340 (3d Dept

1990) (traffic collision gave rise to three actions,

involving multiple injured plaintiffs and defendants,

including third party defendants (town and county)

in two of the actions; Appellate Division disagreed

with Supreme Court’s sua sponte severance of

the action without third party defendants; all three

actions involved predominately common issues

of fact; potential prejudice was at least partly

obviated by dismissal of all claims against the third

parties and settlement of certain claims in action 1;

any remaining concerns were outweighed by the

advantages of judicial economy, eliminating the risk

of inconsistent verdicts and of possibly exhausting

insurance coverage by the first judgments obtained).]

IN PRACTICE:

Concerns relating to severance are in

many respects mirror images of the con-

cerns surrounding joinder and consolidation.

Normally, motions to join or consolidate are

made long before a trial is on the horizon, but

concepts expressed in cases discussing join-

der and consolidation are still useful to keep

in mind when considering severance. For

example, regardless of whether the motion is

to sever, or to join or consolidate, prejudice

should always overcome convenience. [See

Skelly v. Sachem Central School District,

309 AD2d 917, 917, 766 NYS2d 108, 109

(2nd Dept 2003) (“[t]he power to order con-

solidation rests in the sound discretion of the

court and should be granted in the interest

of judicial economy where common issues

of law or fact exist ... [h]owever, where

prejudice to a substantial right is shown by

the party opposing the motion, consolida-

tion should not be granted even if common

questions of law or fact exist ...”; Tarshish

v. Associated Dry Goods Corporation, 232

AD2d 246, 246-247, 648 NYS2d 298, 299

(1st Dept 1996) (where consolidation would

have been “highly prejudicial” to the common

defendant, since presentation of both claims

to the same jury would tend to bolster each

claim; also, actions were at very different

stages of the litigation process).] In Dias v.

Berman, 188 AD2d 331, 591 NYS2d 163 (1st

Dept 1992), the trial court properly denied a

motion to consolidate made on the eve of

trial where one action was ready for trial

and the other was not, the events underlying

the two actions occurred in two different

counties and plaintiffs’ stipulation that they

would discontinue one action if they were

successful in the other obviated any problem

of double recovery. In Geneva Temps, Inc. v.

New World Communications, Inc., 24 AD3d

332, 806 NYS2d 519 (1st Dept 2005), the

parties opposing consolidation did not carry

their burden of demonstrating prejudice to

a substantial right, and potential jury confu-

sion (which could occur where consolidation

would result in a party being both plaintiff

and defendant) was avoided by granting the

motion to consolidate to the only extent of

ordering a joint trial. In Hanover Insurance

Group v. Mezansky, 105 AD3d 1000, 964

NYS2d 201 (2d Dept 2013), the Second

Department affirmed consolidation of a sub-

rogation action with the underlying personal

injury auto accident matter. Defendants had

argued that they would be prejudiced if the

two actions were tried before the same jury

since it would bring to the jury’s attention the

existence of insurance. The Second Depart-

ment held that even assuming there would

be prejudice to defendants, the prejudice

would be outweighed by the possibility of

inconsistent verdicts, and prejudice could be

mitigated by appropriate jury instructions. In

Scotto v. Kodski, 102 AD3d 947, 958 NYS2d

740 (2d Dept 2013), action no. 1 was brought

in Kings County alleging fraud and breach of

contract and to set aside a purchase money