Opinion
March 15, 1971
In an action for an injunction and damages, defendants and third-party plaintiffs appeal from an order of the Supreme Court, Queens County, dated November 25, 1970, which denied their motion to strike the action from the Special Term Trial Calendar and granted the cross motions of plaintiffs and third-party defendant Baldassare to sever the third-party action from the main action. Order modified by striking therefrom the second decretal paragraph, which granted the cross motions of plaintiffs and third-party defendant Baldassare, and substituting therefor a provision denying said cross motions. As so modified, order affirmed, with one bill of $10 costs and disbursements to appellants against respondents Donald E. Hernly, Inc., and Patsy Baldassare jointly. In our opinion, the Special Term abused its discretion in holding, pursuant to CPLR 1010, that a severance was necessary. Sufficient evidence was not given to show imminent danger of further damage being done to plaintiffs' premises. Also, it was incorrect to assume that there would have to be a severance because one of the third-party defendants was an insurance company and another third-party defendant had demanded a jury trial. The insurance company had not opposed any of the motions; nor had it made its own motion to sever. In addition, defendants might be put at an unfair disadvantage if severance were to be allowed. They could lose to plaintiffs in the main action and then lose to the third-party defendants in a later action. The jury in the later action, not being bound by the findings in the main action, could find that plaintiffs did not have a valid cause of action against defendants, which would relieve the third-party defendants of any liability. However, defendants would remain liable to plaintiffs under the finding in the first action. This type of situation will be avoided by disposing of all the issues in one action. Munder, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.