La Vin v. La Vin

281 A.D. 1032, 121 N.Y.S.2d 1, 1953 N.Y. App. Div. LEXIS 4228

Opinion

In a stockholder’s derivative action, plaintiff appeals from an order denying his motion to sever the tenth cause of action and to direct a separate trial thereof. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Defendants Lebis Hotel Management Corp., 140-40 Sanford Avenue Corporation, and Samuel Lebis, who did not oppose the motion and who are not parties to this appeal, are the only defendants who have served answers in this action. The individual defendants La Yin are nonresidents and cannot be served within this State. The defendant Sanford Hotel Corp. is in default. There will be no prejudice by the severance and separate trial of the tenth cause of action. There has been a change of circumstances since the denial of a motion made by the answering defendants for similar relief, which was affirmed by this court (279 App. Div. 590), warranting the making and granting of plaintiff’s motion. Nolan, P. J., Carswell, Wenzel, Schmidt and Beldock, JJ., concur.