Burke v. American Refractories Co.

22 A.D.3d 392, 802 N.Y.S.2d 360

Opinion

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered April 20, 2005, which, in an action against defendant and third-party plaintiff-respondent for personal injuries allegedly caused by exposure to asbestos dust carried home by plaintiff’s father, denied third-party defendant-appellant’s motion to dismiss the third-party complaint for noncompliance with the case management order governing this action, unanimously affirmed, without costs.

Third-party plaintiffs failure to file the third-party complaint by the deadline contained in the case management order did not cause third-party defendant prejudice and was properly disregarded (CPLR 2004). Had third-party plaintiff properly moved for permission to serve the third-party complaint five months after the deadline, instead of unilaterally serving it, such motion would likely have been granted. Certainly, no matter how expedited the protocols applicable to these cases placed in the “In Extremis Trial Cluster,” there can be no final disposition of this action until there has been a decision in the still pending appeal to the Court of Appeals in Matter of New York City Asbestos Litig. (14 AD3d 112 [1st Dept 2004], lv granted 2005 NY App Div LEXIS 1332 [2005]). Concur—Buckley, P.J., Saxe, Marlow, Ellerin and Williams, JJ.