Escourse v. City of New York

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

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.