Miro v. Branford House, Inc.

174 A.D.2d 363

Opinion

—Order, Supreme Court, Bronx County (Lewis Friedman, J.), entered on or about February 28, 1991, which granted third-party defendants’ motion pursuant to CPLR 1010 for an order severing the third-party action from the main action, unanimously affirmed, with costs.

The IAS court properly exercised its discretion in severing the third-party medical malpractice action from the main action, a personal injury action seeking damages for conscious pain and suffering and wrongful death stemming from the alleged negligence of defendants/third-party plaintiffs, among others, whose building water system was claimed to have scalded the decedent, contributing to her death 17 days thereafter. The commencement of the third-party action on the eve of trial of the main action, which was commenced more than SVi years earlier, would inevitably cause plaintiff prejudice if trial were to be further delayed in order to convene a medical malpractice panel and to complete discovery in the subsidiary malpractice action (Cortez v New York City Hous. Auth., 163 AD2d 13). Concur—Milonas, J. P., Rosenberger, Ellerin, Kassal and Smith, JJ.