Cortez v. New York City Housing Authority

163 A.D.2d 13, 558 N.Y.S.2d 9, 1990 N.Y. App. Div. LEXIS 8088

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 3, 1990
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Anita Florio, J.), entered No vember 14, 1989, which, inter alia, granted plaintiff’s cross motion to sever the third-party action, unanimously affirmed, without costs or disbursements.

Plaintiff’s action against the Housing Authority, alleging negligence when he slipped and fell on an unlit stairway in February 1988, resulting in leg and ankle injuries, was commenced in April 1988. Plaintiff filed a note of issue and statement of readiness, which defendant never sought to strike, in January 1989. On the eve of the trial, in August 1989, defendant commenced a third-party action against the New York City Health and Hospitals Corporation, alleging that plaintiff’s injuries were aggravated by medical malpractice in plaintiff’s treatment. We find no abuse of discretion in Supreme Court’s grant of a severance of the third-party action pursuant to CPLR 1010 where such belated commencement of the third-party action would inevitably cause plaintiff prejudice by delaying trial of the main action (see, Vita Food Prods. v Epstein & Sons, 52 AD2d 522; see also, Gardner v City of New York, 102 AD2d 800). Concur—Murphy, P. J., Sullivan, Carro, Milonas and Rubin, JJ.