Opinion
January 6, 1967
Order of the Supreme Court, Kings County, dated November 1, 1966, modified (1) by striking therefrom all the ordering provisions except the last and (2) by substituting therefor provisions (a) granting plaintiff's motion for a severance and a separate trial of the third-party action and for an immediate trial of the main action and (b) setting the main action down for trial at the head of the Ready Day Calendar on January 9, 1967. As so modified, order affirmed, insofar as appealed from, without costs and without prejudice to a motion by the defendant third-party plaintiff and/or the third-party defendants for a vacatur of the severance and for other appropriate relief in the event that plaintiff die before the commencement of the trial of the main action and there has been no willful and undue delay by the third-party plaintiff and the third-party defendants in proceeding with the pretrial preliminaries in the third-party action (cf. Merkle v. 110 Glen St. Realty Corp., 282 App. Div. 617, 622). In our opinion, the denial of the motion for a severance and the limitation of time in which the third-party plaintiff and the third-party defendants could proceed with the pretrial proceedings in the third-party action were improvident exercises of discretion. It is evident that a denial of the motion for a severance would prejudice the right of plaintiff, who had previously obtained a preference in the main action, to an immediate trial. Beldock, P.J., Brennan, Rabin, Hopkins and Benjamin, JJ., concur.