Escourse v. City of New York

27 A.D.3d 319, 812 N.Y.S.2d 478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 23, 2004, which denied plaintiffs’ motion to sever the third-party action and third-party defendant’s cross motion to dismiss the third-party complaint, unanimously affirmed, without costs.

The denial of plaintiffs’ motion to sever was a provident exercise of discretion notwithstanding defendants’ delay in commencing the third-party action (CPLR 1010; see Shanley v Callanan Indus., 54 NY2d 52, 57 [1981]; Wilson v City of New York, 1 AD3d 157 [2003]; Klein v City of Long Beach, 154 AD2d 346 [1989]). We note that due to plaintiffs’ own delays, the action was stricken from the trial calendar while the instant motions were pending. Furthermore, by filing a note of issue stating that disclosure was complete, plaintiffs waived any defects in defendants’ response to the November 1999 conditional order of preclusion (see Simpson v City of New York, 10 AD3d 601, 602 [2004]). Thus, the motion court properly declined to strike defendants’ answer. Concur—Tom, J.P., Gonzalez, Sweeny, Catterson and Malone, JJ.