Leavitt v. New York City Transit Authority

111 A.D.2d 907, 490 N.Y.S.2d 611, 1985 N.Y. App. Div. LEXIS 50176

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 24, 1985
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, third-party defendant General Motors Corporation appeals from an order of the Supreme Court, Kings County (Hellenbrand, J.), dated September 12, 1984, which denied its motion to dismiss the third-party complaint without prejudice or, in the alternative, to sever the third-party action from the main action.

Order affirmed, without costs or disbursements.

We have reviewed the record and conclude that, notwithstanding the third-party plaintiff’s inordinate and unjustified delay in commencing its third-party action, the denial of the third-party defendant’s motion to sever that action from the main action did not constitute an improvident exercise of discretion (CPLR 1010; Rago v Nationwide Ins. Co., 110 AD2d 831; Fries v Sid Tool Co., 90 AD2d 512). Both actions involve common issues of law and fact, making a single trial appropriate. Moreover, the third-party defendant was afforded an adequate opportunity to complete its discovery without unduly delaying the trial.

However, because this appeal was necessitated by the New York City Transit Authority’s delay in commencing its third-party action, we have denied costs. Mangano, J. P., Bracken, Rubin and Kunzeman, JJ., concur.