Guido v. County of Cayuga

2017 NY Slip Op 8140, 155 A.D.3d 1675, 64 N.Y.S.3d 830

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2017
• Docket: 1302 CA 16-01952
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Cayuga County (Mark H. Fandrich, A.J.), entered July 29, 2016. The order granted the motion of third-party defendant Philip Gottlieb, MD, to vacate the note of issue and certificate of readiness, and denied the cross motion of plaintiffs to sever the third-party action from the main action.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by plaintiff John Guido after defendants allegedly failed to provide him with his prescription medication while he was incarcerated at a facility operated by defendant County of Cayuga. Third-party defendant Philip Gottlieb, MD moved to vacate the note of issue and certificate of readiness, and plaintiffs cross-moved pursuant to CPLR 1010 to sever the third-party action from the main action. Supreme Court granted Gottlieb’s motion and denied plaintiffs’ cross motion. We affirm.

Contrary to plaintiffs’ contention, we conclude that the court did not abuse its discretion in denying the cross motion for severance inasmuch as plaintiffs failed to show substantial prejudice (see CPLR 1010; Coffee v Tank Indus. Consultants, Inc., 133 AD3d 1305, 1306 [4th Dept 2015]; Neckles v VW Credit, Inc., 23 AD3d 191, 192 [1st Dept 2005]). The court also properly granted the motion to vacate the note of issue and certificate of readiness because, among other things, “the third-party action was commenced after the note of issue was filed in the main action, and [Gottlieb] had outstanding requests for discovery” (Coffee, 133 AD3d at 1306; see 22 NYCRR 202.21 [e]).

Present—Centra, J.P., Peradotto, Garni, DeJoseph and Winslow, JJ.