Freeland v. New York Communications Center Associates

193 A.D.2d 511, 598 N.Y.S.2d 454

Opinion

Order of the Supreme Court, Bronx County (Hansel McGee, J.), entered on May 4, 1992, which granted plaintiff’s motion for permission to file a note of issue and to sever the third-party action, is unanimously affirmed, with costs and disbursements.

Plaintiff commenced this lawsuit for damages for physical injuries allegedly suffered by him in a construction accident which occurred in a building owned by defendants. At a pretrial conference held in connection with this matter, the parties stipulated, in part, that any impleader action was to be commenced within 45 days of the completion of all depositions. However, despite this agreement, the third-party complaint was not served until more than 115 days after the depositions had been concluded, and plaintiff moved for a severance, as well as permission to file a note of issue. In that regard, it is undisputed that defendants not only voluntarily entered into the subject stipulation but were aware of the existence of third-party defendant, Dynamic Drywell Corporation, plaintiff’s employer, since, at the very least, the time that the complaint was originally served, yet inexplicably delayed in bringing the third-party action. Consequently, the Supreme Court did not abuse its discretion in granting plaintiffs motion for severance (CPLR 603). Concur—Milonas, J. P., Ellerin, Asch, Kassal and Rubin, JJ.