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

208
CA 15-01382
PRESENT: SMITH, J.P., PERADOTTO, NEMOYER, CURRAN, AND SCUDDER, JJ.


ALEX C. MILLER, PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

KIRK HOWARD, ET AL., DEFENDANTS,
AND AMORE’S USED CARS & REPAIRS, INC.,
DEFENDANT-APPELLANT.


RUPP BAASE PFALZGRAF CUNNINGHAM LLC, BUFFALO (WILLIAM K. KENNEDY OF
COUNSEL), FOR DEFENDANT-APPELLANT.

FRANCIS M. LETRO, BUFFALO (CAREY BEYER OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme   Court, Cattaraugus County
(Paula L. Feroleto, J.), entered October   31, 2014. The order granted
the motion of plaintiff pursuant to CPLR   603 for a separate trial on
the issue of the negligence of defendant   Amore’s Used Cars & Repairs,
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 sustained when the vehicle in which he was a passenger
collided with a tree. Plaintiff alleged theories of liability with
respect to the collision, and he alleged that Amore’s Used Cars &
Repairs, Inc. (defendant) was negligent in repairing the vehicle such
that it was responsible for the injuries caused by the failure of the
passenger air bag to deploy. Supreme Court previously granted the
motion of defendant County of Cattaraugus to bifurcate the trial,
granting bifurcation of the “issue of negligence on each of the
separate theories of liability as to each defendant, with the damages
phase of the trial to proceed at a later date before a separate jury.”
Plaintiff thereafter moved for a separate trial on the issue of
defendant’s negligence, contending that the issues of liability for
the collision were distinct from the issue of negligence with respect
to the repair of the vehicle, and that the injuries sustained by
plaintiff as the result of the failure of the air bag to deploy are
capable of practicable division. Defendant appeals from an order
granting the motion, and we now affirm.

     “In furtherance of convenience or to avoid prejudice the court
may order a severance of claims, or may order a separate trial of any
                                 -2-                           208
                                                         CA 15-01382

claim, or of any separate issue” (CPLR 603). “The determination of a
severance motion 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’ ”
(Utica Mut. Ins. Co. v American Re-Insurance Co., 132 AD3d 1405,
1405). Even where a plaintiff “will to some extent rely on the same
evidence” (Abbondandolo v Hitzig, 282 AD2d 224, 225), 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). Here, the allegations of negligence
with respect to defendant do not relate to the occurrence of the
accident itself, but they instead concern the repair and maintenance
history of the vehicle prior to the collision. Under these
circumstances, we conclude that the court did not abuse its discretion
in granting plaintiff’s severance motion (see Utica Mut. Ins. Co., 132
AD3d at 1406).




Entered:   March 25, 2016                      Frances E. Cafarell
                                               Clerk of the Court
