In Simoni v Costigan   2012 NY Slip Op 07882   Decided on November 20, 2012   Appellate Division, First Department  plaintiff tries to get the ongoing personal injury action consolidated with a legal malpractice action.  Plaintiff fails.  We cannot tell why, from the decision, and the underlying Supreme Court decision is not available to us.  In general, however, Courts do not like to mix the real personal injury outcome  with the hypothetical outcome of what would have happened if the attorney did not make a mistake. 

Consider a case where a crucial piece of evidence is precluded.  The case is not dismissed, just damaged.  Plaintiff fires attorney and hires new attorney, who slogs on.  Plaintiff then says, if I’m missing a vital piece of evidence, I will be injured.  Why not have one jury decide both issues?

The Courts usually (in the first instance) say that this will be confusing to the Jury.  Here, in Simoni we see: "Although the personal injury actions and the legal malpractice action involve "a common question of law or fact" (CPLR 602[a]), consolidation could engender jury confusion and [*2]prejudice the defendants in the malpractice action (see Addison v New York Presbyt. Hosp./Columbia Univ. Med. Ctr., 52 AD3d 269, [1st Dept 2008]; Brown v Brooklyn Union Gas Co., 137 AD2d 479 [2nd Dept 1988]). "