Torres v. Visto Realty Corp.

106 A.D.3d 645, 965 N.Y.S.2d 721

Opinion

Order, Supreme Court, Bronx County (John A. Barone, J.), entered on or about June 6, 2012, which granted third-party defendant’s motion to sever the third-party action, unanimously affirmed, without costs.

Since the main action involves the factual issue whether there was a defect in the sidewalk that contributed to plaintiffs injury, and the third-party action involves lease contract issues such as indemnification, and plaintiff, who has filed a note of issue, would be prejudiced by the delay caused by the need for discovery in the third-party action, severance of the third-party action was appropriate (see CPLR 1010; Garcia v Gesher Realty Corp., 280 AD2d 440 [1st Dept 2001]).

We reject defendant/third-party plaintiff landowner’s argument, pursuant to CPLR 1001 (b) (2) and (5), that third-party defendant tenant is a necessary party to the main action. Plaintiffs cause of action is grounded in Administrative Code of the City of New York § 7-210, which imposes on the owner of property abutting a sidewalk a nondelegable duty to maintain the sidewalk in reasonably safe condition (see e.g. Collado v Cruz, 81 AD3d 542 [1st Dept 2011]). The provisions of the tenant’s lease obligating it to repair the sidewalk could not be enforced through the main action (id.). Concur—Acosta, J.E, Renwick, Richter and Feinman, JJ.