Legal Alerts

Appellate Decision May Lead to More Unified Trials Across New York’s Second Department

New York, N.Y. (September 23, 2019) - A recent appellate decision in Castro v. Malia Realty may lead to more unified trials in New York’s Second Department, a large venue that encompasses Brooklyn, Queens, Long Island, Staten Island, and several Upstate New York counties. As a result of this decision, the Second Department now joins other New York Departments in “relaxing” the general rule that personal injury trials should be bifurcated. The court essentially said that trial courts and litigants in the Second Department have for too long operated under the erroneous belief that bifurcated trials are almost automatic, absent exceptional circumstance. This is no longer a favored view in the Second Department.

Defendants generally prefer bifurcated trials because the jury hears little or no evidence regarding injuries and damages during the liability phase. The jury, therefore, is not prejudiced against the defense by hearing damages evidence while considering potentially complex liability issues. Moreover, the defense can take a “wait and see” approach towards settlement, by waiting to see if the jury will find in the plaintiff’s favor before facing the damages phase. In light of the Castro decision, obtaining settlements in the Second Department may be more difficult pre-trial, because it gives plaintiffs more reason to believe a unified trial can be obtained. Most attorneys and judges agree that unified trials generally favor plaintiffs.

Castro v. Malia Realty

In Castro, the Second Department reversed a jury verdict rendered in Queens County, and granted a new trial, because the trial judge erred in denying a unified trial, which resulted in a defense verdict. During the liability phase, a major issue was presented as to whether the plaintiff fell from a scaffold or was injured when he lifted certain planks of wood. The plaintiff argued that medical evidence shed light on this dispute, thus warranting a unified trial, but the judge disagreed. On appeal, the Second Department held that because the damages question (i.e. how the injury occurred) had an important bearing on the liability question, it was an error for the lower court to bifurcate the trial. Therefore, the verdict was vacated and a new unified trial was ordered.

Bifurcated Trials in New York

In New York, the rule historically had been that bifurcated trials were required unless there were “exceptional circumstances” and “good cause” for a single unified trial. In 1986, however, the legislature adopted 22 N.Y.C.R.R. 202.42[a], pursuant to which “Judges are encouraged to order a bifurcated trial on the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in clarification or simplification of issues and a fair and more expeditious resolution of the action.” This new rule, which relaxed the “exceptional circumstances” and “good cause” criteria, applied uniformly to all trial courts statewide. Under the 1986 Uniform Rule, trial courts around the state became more open to unified trials, but those in the Second Department remained less so.

The Second Department’s Decision

In Castro, the Second Department stated that the lower court’s refusal to unify the trial was “predicated upon its perception that a bifurcated trial was strictly required by the Second Department…” However, “neither the statewide rule nor the governing precedent absolutely requires that the trial of a personal injury action be bifurcated.” It is, the court continued, “not an absolute given and it is the responsibility of the trial judge to exercise discretion in determining whether bifurcation is appropriate in light of all relevant facts and circumstances presented by the individual cases.”

The court concluded by stating that the trial court’s decision not to permit testimony concerning causation and the nature and extent of the plaintiff’s injuries, and its “insistence upon bifurcation and its ensuing limitations on the scope of the medical evidence that could be elicited by the plaintiffs deprived them of a fair trial.”


While the rule remains that personal injury trials generally will be bifurcated in the Second Department, Castro makes clear that the standard necessary to obtain a unified trial has now been relaxed, and bifurcation is no longer virtually automatic in the Second Department. In order to obtain a unified trial, the plaintiff must still show an important connection between damages and liability. Smart plaintiffs’ lawyers will attempt to creatively link damages to the question of liability in an effort to obtain unified trials going forward. Our office will keep these standards in mind during settlement discussions and trial preparation. We will also be prepared to oppose motions to unify trials under the relaxed standard, post-Castro.

For more information on this case, please contact the authors of this alert or visit our National Trial Practice page.


David M. Pollack, Partner

Nicholas P. Hurzeler, Partner

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