Summary
holding "[t]he motion court erred in granting plaintiff's motion to sever the main action from the third-party action. The main and third-party actions involve common factual and legal issues which should be tried together"
Summary of this case from Mayorga v. 75 Plaza LLCOpinion
6524.
November 3, 2005.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 5, 2005, which granted plaintiff's motion to sever the third-party complaint, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied.
Wilson, Elser, Moskowitz, Edelman Dicker LLP, New York (Richard E. Lerner of counsel), for appellant.
Michael B. Palillo, New York, for respondent.
Before: Friedman, J.P., Marlow, Gonzalez and Catterson, JJ., Concur.
The motion court erred in granting plaintiff's motion to sever the main action from the third-party action. The main and third-party actions involve common factual and legal issues which should be tried together ( see Stark v. Greenberg, Dauber Epstein, 219 AD2d 571; see also Vitiello v. Mayrich Constr. Corp., 255 AD2d 182, 184). Furthermore, plaintiff does not claim that further disclosure is required ( compare 17 Vista Fee Assoc. v. Teachers Ins. Annuity Assn. of Am., 226 AD2d 298), or that the trial in the main action otherwise will be delayed if the motion is denied. Moreover, denial of plaintiff's motion to sever will allow the third-party defendant, who may be liable for indemnification to appellant, to participate in the damages phase of the first-party action ( see Graziano v. 118-17 Liberty Ave. Mgt. Corp., 209 AD2d 582, 583). Finally, plaintiff's claim of prejudice is speculative and unsupported by the record.