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EILEEN GLUSSI, ET AL., RESPONDENT, v. FORTUNE BRANDS, INC., F/K/A AMERICAN BRANDS, INC., ET AL., APPELLANTS, ET AL., DEFENDANTS. (ACTION NO. 1). JEFFREY DAVIS, ET AL., RESPONDENTS,

DECISION ORDER

ORDERED that the order is reversed, with one bill of costs, and the motion is denied.

It is well settled that a motion seeking a joint trial pursuant to CPLR 602(a) rests within the sound discretion of the trial court (see, J A Vending v. J.A.M. Vending, 268 A.D.2d 505; Mattia v. Food Emporium, 259 A.D.2d 527; Fransen v. Mariscalco, 256 A.D.2d 305, 306) and, absent prejudice, may be granted in the interest of judicial economy where common issues of law or fact exist (see, Rahman v. Miller, 257 A.D.2d 654; Fransen v. Mariscalco, supra, at 306).

However, where prejudice to a substantial right is shown by the party opposing the motion, a joint trial should not be granted even if common issues of law or fact exist (see, D'Abreau v. American Bankers Ins. Co. of Fl., 261 A.D.2d 501; Stephens v. Allstate Ins. Co., 185 A.D.2d 338).

Here, despite the presence of some common issues of law and fact shared by these actions, the particular circumstances surrounding each plaintiff's smoking history, as well as their medical history, renders a joint trial impractical and unwieldy (see, Bender v. Underwood, 93 A.D.2d 747, 748; Korren v. Eli Lily Co., 150 Misc.2d 429, 431-432; see also, Small v. Lorillard Tobacco Co., 252 A.D.2d 1, affd 94 N.Y.2d 43). In addition, "the resulting and cumulative prejudice to [the defendants] by permitting the jury, in one trial, to determine the multiple claims * * * at issue here, far outweighs the benefit derived from the conduct of a joint trial" (Bender v. Underwood, supra, at 748; see also, Korren v. Eli Lily Co., supra, at 432; Insolia v. Philip Morris, Inc., 186 FRD 547, 551; Hasman v. G.E. Searle Co., 106 FRD 459, 460). Thus, the order appealed from was an improvident exercise of discretion.

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GLUSSI v. FORTUNE BRANDS, INC
(Oct 16, 2000)