Opinion
May 16, 1994
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the appeal from so much of the order dated October 1, 1992, as denied resettlement is dismissed, without costs or disbursements, as no appeal lies from an order denying resettlement; and it is further,
Ordered that the appeal from so much of the order dated August 14, 1992, as struck certain allegations as scandalous, prejudicial, and unnecessary is dismissed, without costs or disbursements, as no appeal lies of right from an order striking scandalous or prejudicial matter from a pleading; and it is further,
Ordered that the order dated August 14, 1992, is modified, by (1) deleting the provision thereof which severed the claims of C.B. Foods, Inc. and Christopher Bock from the second cause of action, and substituting therefor a provision denying that relief, and (2) deleting the provision thereof which dismissed the cause of action asserted by C.B. Foods, Inc., and substituting therefor a provision denying that relief; as so modified, the order is affirmed insofar as appealed from and reviewed, without costs or disbursements; and it is further,
Ordered that the order dated October 1, 1992, is reversed insofar as reviewed, without costs or disbursements, and the declaration that Peter Castellana, Sr., was not a party defendant is deleted.
No appeal lies from an order denying resettlement of the decretal paragraphs of a prior order (see, Fiala v. Schrager, 68 A.D.2d 923). Thus, the portion of the order dated October 1, 1992, which denied resettlement is not properly before this Court, and the appeal therefrom must be dismissed. Further, although it appears that the plaintiff C.B. Foods, Inc., and the defendant Peter Castellana, Sr., were improperly joined in this action, this objection has been waived (see, Yonker v. Amol Motorcycles, 161 A.D.2d 638; Gavigan v. Gavigan, 123 A.D.2d 823; Camacho v. New York City Tr. Auth., 115 A.D.2d 691; McDaniel v. Clarkstown Cent. Dist. No. 1, 83 A.D.2d 624; Catanese v. Lipschitz, 44 A.D.2d 579). In addition, the court's striking of certain allegations as scandalous, prejudicial, and unnecessary is not appealable as of right (see, Alberi v. Rossi, 108 A.D.2d 833; Ocean-Clear, Inc. v Continental Cas. Co., 91 A.D.2d 680). Here, because the plaintiffs never requested leave to appeal, the issue is not properly before this Court. In any event, were we to reach this issue, we would hold the defendants' motion to strike the allegations was sufficiently timely and properly granted (see, JC Mfg. v. NPI Elec., 178 A.D.2d 505; Wegman v. Dairylea Coop., 50 A.D.2d 108; Schachter v. Massachusetts Protective Assn., 30 A.D.2d 540; Szolosi v. Long Is. R.R. Co., 52 Misc.2d 1081; Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3024:5, at 324; 3 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 3024.14). Moreover, the court properly dismissed the plaintiffs' third cause of action to recover damages for abuse of process, for failure to state a cause of action (see, Curiano v. Suozzi, 63 N.Y.2d 113; Board of Educ. v. Farmingdale Classroom Teachers Assn., 38 N.Y.2d 397; Dean v. Kochendorfer, 237 N.Y. 384).
However, due to various points of commonality, it was an improvident exercise of discretion for the trial court to sever the fraud claims of C.B. Foods, Inc., and Christopher Bock from the second cause of action (see, Weiss v. Meiselman, 155 A.D.2d 531; Matter of Rattner v. Planning Commn., 156 A.D.2d 521). Allowing the entire action to proceed as pleaded will avoid a multiplicity of trials, inconvenience and prejudice to the defendants (see, Weiss v. Meiselman, supra; Matter of Rattner v Planning Commn., supra; Zuckerman v. La Guardia Hosp., 125 A.D.2d 304; Egan v. Ariens Co., 108 A.D.2d 894; Oak Beach v. Town of Babylon, 100 A.D.2d 930).
We have considered the parties' remaining contentions and find them to be without merit. Lawrence, J.P., Copertino, Altman and Goldstein, JJ., concur.