        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

238
CA 12-01809
PRESENT: CENTRA, J.P., FAHEY, CARNI, LINDLEY, AND WHALEN, JJ.


IN RE: EIGHTH JUDICIAL DISTRICT ASBESTOS
LITIGATION.
----------------------------------------------
ANTHONY SEYMOUR, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

NIAGARA INSULATIONS, INC., ET AL., DEFENDANTS,
BEAZER EAST, INC., DOMTAR CORPORATION AND
HONEYWELL INTERNATIONAL, INC.,
DEFENDANTS-APPELLANTS.


WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (THOMAS S. D’ANTONIO OF
COUNSEL), PHILLIPS LYTLE LLP, BUFFALO, AND GOLDBERG SEGALLA LLP, FOR
DEFENDANTS-APPELLANTS.

LIPSITZ & PONTERIO, LLC, BUFFALO (DENNIS P. HARLOW OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County (John
P. Lane, J.H.O.), entered August 13, 2012. The order denied a motion
for severance made by defendant Beazer East, Inc., individually and on
behalf of, inter alia, defendants Domtar Corporation and Honeywell
International, Inc.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained as a result of his exposure to coal
tar pitch fumes and asbestos while employed as a laborer in the carbon
electrode industry. In the complaint, plaintiff separated the
defendants into two groups: the coal tar pitch industry defendants,
which included defendants Beazer East, Inc. (Beazer), Domtar
Corporation (Domtar), and Honeywell International, Inc. (Honeywell)
(collectively, appellants), and the asbestos industry defendants.
Plaintiff alleged in the complaint that products manufactured and sold
by appellants exposed him to coal tar pitch fumes, which caused him to
contract bladder cancer. Plaintiff further alleged that products
manufactured and sold by the asbestos industry defendants exposed him
to asbestos, which caused injuries related thereto. Appellants appeal
from an order denying their motion for severance of all claims and
causes of action against them pursuant to CPLR 603. We affirm.
                                 -2-                           238
                                                         CA 12-01809

     “The determination of whether to grant or deny a request for a
severance pursuant to CPLR 603 is a matter of judicial discretion,
which should not be disturbed on appeal absent a showing of prejudice
to a substantial right of the party seeking the severance” (Zawadzki v
903 E. 51st St., LLC, 80 AD3d 606, 608; see Caruana v Padmanabha, 77
AD3d 1307, 1307; see generally Kaufman v Eli Lilly & Co., 65 NY2d 449,
460). The burden is on the party seeking the severance to show that
“a joint trial would result in substantial prejudice” (Global Imports
Outlet, Inc. v Signature Group, LLC, 85 AD3d 662, 662). Severance is
appropriate where “individual issues predominate, concerning
particular circumstances applicable to each [defendant] . . . [and
there] is the possibility of confusion for the jury” (Gittino v LCA
Vision, 301 AD2d 847, 847-848 [internal quotation marks omitted]; see
Soule v Norton, 299 AD2d 827, 828). Here, although appellants
contended that a joint trial might result in juror confusion and would
be inappropriate because plaintiff’s alleged injuries with respect to
his exposure to coal tar pitch fumes and to asbestos were distinct,
they did not satisfy their burden of establishing that a joint trial
would result in substantial prejudice. Thus, we perceive no reason to
disturb Supreme Court’s exercise of discretion in denying the motion.
Appellants’ contention that severance was warranted because they would
be prejudiced by the procedures relating to asbestos cases was raised
for the first time in their reply papers and was therefore not
properly before the court (see Jacobson v Leemilts Petroleum, Inc.,
101 AD3d 1599, 1600; DiPizio v DiPizio, 81 AD3d 1369, 1370). Finally,
appellants’ contention that, without severance, they will be denied
the opportunity to seek removal of their action to federal court is
raised for the first time on appeal and thus is not properly before us
(see McGrath v Town of Irondequoit, 100 AD3d 1518, 1519; Ciesinski v
Town of Aurora, 202 AD2d 984, 985).




Entered:   May 3, 2013                         Frances E. Cafarell
                                               Clerk of the Court
