Opinion
August 25, 1997
Appeal from the Supreme Court, Nassau County (Collins, J.).
Ordered that the appeal from the order dated July 30, 1996,
Ordered that the order dated December 6, 1996, is reversed insofar as appealed from, the order dated July 30, 1996, is vacated, and the motion to vacate the notice of vouching in is granted; and it is further,
Ordered that the appellant is awarded one bill of costs.
In order for a party to vouch in another individual or entity, the notice of vouching in "must be timely and proper, and it must offer to grant control to the vouchee of the defense of the litigation" ( Cole v. Long Is. Light. Co., 14 A.D.2d 922; see also, United N.Y. Sandy Hook Pilots Assn. v. Rodermond Indus., 394 F.2d 65, 72-73; 3 Carmody-Wait 2d, N.Y. Prac § 19:175, at 556; 82 N.Y. Jur 2d, Parties, § 186; Restatement of Judgments § 107; cf., Bay State Heating Air Conditioning Co. v. American Ins. Co., 78 A.D.2d 147, 149).
Here, the record indicates that the notice of vouching in was served some four months after the note of issue and certificate of readiness for trial were served. Further, all depositions had been completed some 10 months prior to the service of the notice of vouching in. Under these circumstances, we find that the notice of vouching in was untimely ( Cole v. Long Is. Light. Co., supra).
In light of our determination that the notice of vouching in was untimely, we do not pass upon the question whether the vouching in procedure was applicable in this matter.
Thompson, J.P., Joy, Altman and Florio, JJ., concur.