Robles v Microtech Contr. Corp., 2011 NY Slip Op 09038 [90 AD3d 531]

Dcmbr 15, 2011

Appellate Division, First Department

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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., formerly known as 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 jury’s awareness of the existence of liability insurance ( see Kelly v Yannotti , 4 NY2d 603, 607 [1958]; Chunn v New York City Hous. Auth. , 55 AD3d 437 [2008]). Concur—Tom, J.P., Friedman, Freedman, Richter and Manzanet-Daniels, JJ..