Bifurcation occurs when a court directs that a full trial be divided into two parts, the first being that of liability and the second being that of damages. The relevant Uniform Rule in the supreme and county courts is Uniform Rule 202.42. It bears the caption of “bifurcated trials,” and says in the first portion of the first sentence of the first subdivision that judges are “encouraged” to order them. “Encouraged” does not mean “must” or “shall.” The encouragement to utilize bifurcation applies when “it appears that bifurcation may assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (Uniform Rule 202.42[a]). The First Department generally does not bifurcate trials. The other three departments within the state generally do bifurcate, consistent with the urging of Uniform Rule 202.42(a).

Bifurcation typically contemplates that liability will be tried first, for the obvious reason that if liability is negated, a damages trial, with all of its attendant time, trouble, and expense, would become altogether unnecessary. Additionally, even in the absence of a defense verdict at the liability trial, a verdict determining issues of liability among multiple parties might drive a settlement of the action, rendering the damages trial unnecessary.

Counsel may ask questions about both liability and damages at the jury voir dire, where it is anticipated that the same jury will hear all parts of the case (Uniform Rule 202.42[c]). Uniform Rule 202.42(e) provides that if there is a verdict in favor of the plaintiff on liability or in favor of the defendant on a counterclaim, the damages trial “shall” be conducted immediately before the same judge and jury. But “shall” does not necessarily mean “shall,” as the court retains the discretion under the Uniform Rule to find such procedures impractical, stating those reasons on the record.

Since bifurcation is not mandatory, courts necessarily have the converse authority to order a unified trial in a given case, which will typically occur where issues of liability and damages are so intertwined that they are inseparable (Mujica v. Nassau County Correctional Facility, 231 A.D.3d 1046 [N.Y. App. Div., 2d Dep’t 2024]; Barron v. Terry, 268 A.D.2d 760 [N.Y. App. Div., 3d Dep’t 2000]). This is commonly seen in the area of medical malpractice. But bifurcation may be inappropriate in certain general personal injury actions as well, such as under the circumstances which existed in Castro v. Malia Realty, LLC, 177 A.D.3d 58 (N.Y. App. Div., 2d Dep’t 2019) (opinion by Scheinkman, P.J.) and Carpenter v. County of Essex, 67 A.D.3d 1106 (N.Y. App. Div., 3d Dep’t 2009). Castro is a leading analytical opinion of then-Presiding Justice Scheinkman of the Second Department, which makes clear that the decision of whether to bifurcate is not guided by a hardand-fast presumption but is left to the sound discretion of the trial courts on a case-by-case basis, and that bifurcation should not be used inflexibly.

The Court of Appeals held in Rodriguez v. City of New York, 31 N.Y.3d 312 (2018), that a plaintiff may obtain summary judgment against a defendant on liability by proving the defendant negligent, without having to prove the absence of comparative negligence. Where summary judgment is granted, the issue of the plaintiff’s comparative negligence is left for trial as an offset to the damages (CPLR 1411, 1412). Those post-motion cases do not need to be bifurcated, as the plaintiff’s comparative negligence may be folded into the damages trial. Bifurcated trials will continue to be seen as robustly as ever in parts of the state that utilize them, where summary judgment motions are not made by plaintiffs prior to trial or where, if made, are unsuccessful.

On very rare occasions, a reverse-bifurcation may make sense where damages should be tried ahead of liability, as illustrated in Harari-Raful v. Trans World Airlines, Inc., 41 A.D.2d 753 (N.Y. App. Div., 2d Dep’t 1973). Harari-Raful involved claims against the defendant airliner arising from an in-flight highjacking. International conventions limited recoveries at the time to $75,000 per passenger, absent the defendant’s willful misconduct or negligence. The plaintiff sought damages on various causes of action that well exceeded $75,000. Relatedly, the plaintiffs sought discovery of the defendant’s anti-highjacking program which the defendant opposed as containing highly-confidential information. The court directed first a trial on damages to determine whether an award would exceed $75,000. If not, the contested discovery as to the issue of willfulness and the anti-highjacking program would become immaterial to the action. If damages were to be found greater than $75,000, discovery was to broadly proceed as contemplated by the trial court, followed by a trial on liability. 

Trifurcation refers to a multi-defendant three-phased trial addressing 1) whether there is any liability of the defendants at all, 2) the apportionment of the parties’ respective liabilities if liability exists, and 3) the trial on damages. The New York Civil Practice Law and Rules (CPLR) and Uniform Rules make no explicit reference to trifurcation. CPLR 4011 and CPLR 603 implicitly grant courts the discretion to determine the sequence of trials, including the severance of claims or parties and the separation of issues. However, trifurcation is not an approach favored by the Court of Appeals, which once stated that “[i]t is preferable, and sometimes essential, that issues of liability be resolved at one stage of the trial” (Greenberg v. City of Yonkers, 37 N.Y.2d 907, 909 [1975]).

The assessment of punitive damages is, in effect, a form of bifurcation or trifurcation. Where punitive damages are an issue at trial, the jury receives the usual instructions from the court about liability and, when tried separately, damages. The damages instructions merely elicit a verdict on whether punitive damages should be awarded, without asking the jury to set any particular amount. If the plaintiff prevails on liability and compensatory damages and the jury answers “yes” to punitive damages, a separate trial is then conducted as to the financial circumstances of the defendant, which influences the amount of punitive damages which may then be awarded to punish the defendant for reprehensible conduct (Gomez v. Cabatic, 159 A.D.3d 62 [N.Y. App. Div., 2d Dep’t 2018]; Rupert v. Sellers, 48 A.D.2d 265 [N.Y. App. Div., 4th Dep’t 1978]. See also 1 PJI 2:278 Comment, Caveat 3]). This protects the jury’s separate compensatory award from being prejudicially tainted by evidence of the defendant’s finances.

While bifurcation and trifurcation are terms with generic dictionary definitions, we in the legal profession understand them as matters of trial procedure.

Hon. Mark C. Dillon is a Justice of the Appellate Division, Second Department, an Adjunct Professor of New York Practice at Fordham Law School, and a contributing author of CPLR Practice Commentaries in McKinney’s.