Pirodsky v. Pirodsky

Jan 31, 1992
Versions:179 A.D.2d 1066
579 N.Y.S.2d 524
1992 N.Y. App. Div. LEXIS 2426

In a civil action for assault, a defendant may show, in mitigation of damages, that plaintiff’s words or actions immediately preceding the assault provoked defendant’s assault (see, Kiff v Youmans, 86 NY 324, 330; Voltz v Blackmar, 64 NY 440, 445; Calabrese v Allright N. Y. Parking, 93 AD2d 973; 2 NY PJI 16 [1990 Supp]). Where, as here, defendant raises the affirmative defense of plaintiff’s culpable conduct, the relative degree of culpability between plaintiff and defendant should be resolved with the issue of damages (see, Cox v *1067Howell, 170 AD2d 1039; Jordan v Britton, 128 AD2d 315, 321-322).

Supreme Court did not abuse its discretion, however, in denying defendant’s motion to consolidate the matrimonial action and the assault action. A motion to consolidate is directed to the sound discretion of the court and the court is given wide latitude in the exercise thereof (Inspiration Enters, v Inland Credit Corp., 54 AD2d 839, 840). The two actions involve many dissimilar issues which may confuse a jury; separate trials will enable the jury to focus on the factual issues presented in each action (see, Brown v Brooklyn Union Gas Co., 137 AD2d 479, 480; Doll v Castiglione, 86 AD2d 711). (Appeal from Order of Supreme Court, Onondaga County, Reagan, J. — Partial Summary Judgment.) Present — Denman, P. J., Callahan, Green, Lawton and Davis, JJ.