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MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that the medical malpractice action should not have been consolidated with an contract action to determine an insurance-coverage obligation in the malpractice action:

… Salvatore Leone and Santa Leone (hereinafter together the Leones) commenced an action to recover damages for medical malpractice against Alvin Hershfeld and Medical Office of Howard Beach, P.C. (hereinafter together Hershfeld; hereinafter the malpractice action). … Hershfeld commenced the instant action against JM Woodworth Risk Retention Group, Inc. (hereinafter JM Woodworth), seeking a declaration that JM Woodworth was obligated to defend and/or indemnify Hershfeld in the malpractice action, and to recover damages for breach of contract, and also named the Leones as defendants. * * *

The Supreme Court improvidently exercised its discretion in consolidating the two actions for the purpose of a joint trial and in amending the caption accordingly. In the malpractice action, the issues involve, inter alia, the alleged negligence of Hershfeld and the alleged damages suffered by the Leones. In the instant action, the issue to be resolved is JM Woodworth's alleged contractual obligation to provide insurance coverage to Hershfeld in the malpractice action. The two actions do not involve common questions of law or fact (see CPLR 602[a]…). Moreover, a joint trial of the two actions could result in substantial prejudice to JM Woodworth. Indeed, it has long been recognized that it is inherently prejudicial to insurers to have the issue of insurance coverage tried before the jury that considers the underlying liability claims, even where common questions of law and fact exist … . Hershfeld v JM Woodworth Risk Retention Group, Inc., 2018 NY Slip Op 06229, Second Dept 9-26-18

CIVIL PROCEDURE (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/CPLR 602  (MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/NEGLIGENCE (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))/INSURANCE LAW (CIVIL PROCEDURE, MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN CONSOLIDATED WITH AN ACTION TO DETERMINE WHETHER THE MALPRACTICE WAS COVERED BY INSURANCE (SECOND DEPT))

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