17 Vista Fee Associates v. Teachers Insurance & Annuity Ass'n of America

226 A.D.2d 298, 642 N.Y.S.2d 625

Opinion

Order, Supreme Court, New York County (Walter Schackman, J.), entered December 27, 1995, which, inter alia, granted defendant’s motion to sever the third-party action commenced by plaintiffs, unanimously affirmed, without costs.

The main action is one in contract seeking to recover payment thereunder; defendant asserted by way of defense and counterclaim breach of certain conditions. The action proceeded to completion of discovery and the setting of a trial date when, almost three years after commencement of the action, plaintiffs commenced a third-party action against an engineering firm upon which they seek to impose any liability with respect to the counterclaims. Inasmuch as there exist a plethora of issues requiring extensive disclosure in the third-party action, which issues are not present in the main action, and differences in the issues of law and fact presented by the two actions, and in view of plaintiffs’ awareness of the third-party defendant’s performance of services in connection with the claimed breach of contract from the very inception of the main action, it was a proper exercise of discretion to order a severance (see, Blechman v Peiser’s & Sons, 186 AD2d 50, 51-52; Vita Food Prods. v Epstein & Sons, 52 AD2d 522). Concur—Murphy, P. J., Rubin, Kupferman, Ross and Tom, JJ.