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Soule v. Norton11/15/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified in the exercise of discretion by granting that part of plaintiffs' request for leave to replead the fourth cause of action insofar as it alleges claims for strict products liability against defendant Visx, Inc. upon condition that plaintiffs shall serve a second amended complaint within 30 days of service of a copy of the order of this Court with notice of entry and (*2)as modified the order is affirmed without costs.
Memorandum:
Plaintiffs commenced this action to recover damages for personal injuries that each sustained as a result of laser eye surgery performed by defendant Sylvia W. Norton, M.D. (Dr. Norton) using a surgical laser manufactured by defendant Visx, Inc. (Visx). The amended complaint asserts a cause of action for medical malpractice against Dr. Norton and defendants Sylvia W. Norton, M.D., P.C., and Sylvia W. Norton, M.D., P.C., doing business as Jerva Eye Center (collectively, Norton defendants), and causes of action for an alleged violation of article 22-A of the General Business Law, "negligent representations and concealment," and strict products liability and breach of warranty against all defendants.
Contrary to plaintiffs' contention, Supreme Court did not abuse its discretion in granting the motion of the Norton defendants pursuant to CPLR 603 to sever the claims of the eight plaintiffs. "Severance, 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" (Finning v Niagara Mohawk Power Corp., 281 AD2d 844, 844; see Southworth v Macko, 294 AD2d 920; County of Chenango Indus. Dev. Agency v Lockwood Greene Engrs., 111 AD2d 508, 509). Here, the record establishes that "individual issues predominate, concerning particular circumstances applicable to each plaintiff" (Bender v Underwood, 93 AD2d 747, 748; see Abbondandolo v Hitzig, 282 AD2d 224, 225; see also DeAngelis v New York Univ. Med. Ctr., 292 AD2d 237, 237-238). In addition, "the resulting and cumulative prejudice to [the Norton defendants] by permitting the jury, in one trial, to determine the multiple claims of malpractice at issue here, far outweighs the benefit derived from the conduct of a joint trial" (Bender, 93 AD2d at 748; see Abbondandolo, 282 AD2d at 225). Indeed, these eight wholly separate malpractice claims "are primarily linked by the fact that the same doctor is charged with malpractice and that the different plaintiffs are represented by the same lawyer" (Reid v Haher, 88 AD2d 873, 874). Furthermore, in view of the fact that there are eight claims, the court, in granting the motion, properly considered the potential for jury confusion (see Abbondandolo, 282 AD2d at 225; Bender, 93 AD2d at 748).
The court also properly granted the motion of Visx to dismiss the amended complaint against it pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The first cause of action is for an alleged violation of article 22-A of the General Business Law. Because the amended complaint alleges that defendants committed (*3)"deceptive practices," plaintiffs presumably are alleging a violation of General Business Law ยง 349 (a). To establish a prima facie violation of that statute, a plaintiff must demonstrate that the defendant is engaging in "consumer oriented" conduct that is deceptive or misleading in a material way, and that plaintiff has been injured because of that conduct (Gaidon v G
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