Opinion
July 11, 1977
In negligence actions, inter alia, to recover damages for personal injuries, which are to be jointly tried, defendants and third-party plaintiffs Katz appeal (1) from so much of an order of the Supreme Court, Queens County, dated November 1, 1976, as directed severance of the third-party actions commenced by them and (2) from an order of the same court, dated December 13, 1976, which denied their motion for reargument. Appeal from the order dated December 13, 1976 dismissed. No appeal lies from an order denying a motion for reargument (Roberts v Connelly, 35 A.D.2d 813; Morris v Morris, 33 A.D.2d 786). Order dated November 1, 1976 modified by (1) adding to the provisions which sever the third-party actions and consolidate those actions for purposes of trial, a provision excepting therefrom the third-party action commenced against respondent Michael Shipsey and (2) adding thereto a provision joining the third-party action againt Michael Shipsey, for purposes of trial, with the main actions. As so modified, order affirmed insofar as appealed from. Respondents appearing separately and filing separate briefs are awarded one bill of $50 costs and disbursements, payable by appellants, to cover both appeals. Special Term properly severed the third-party actions as against Future Motors, Inc., and Chrysler Motors Corp. Those actions were not commenced until June, 1976, more than six months after plaintiffs had filed their statement of readiness, thus working a delay to the prejudice of the plaintiffs (see Vita Food Prods. v Epstein Sons, 52 A.D.2d 522; Todd v Gull Contr. Co., 22 A.D.2d 904; see, also, CPLR 1010). The fact that discovery proceedings may have been completed subsequent to the motion and that the main actions have not yet been reached for trial is irrelevant. Such is not a part of the record on appeal and, in any event, does not bear on the propriety of Special Term's exercise of discretion at the time the motion was made. Moreover, the third-party actions against Chrysler and Future, based as they are on breach of warranty, do not involve questions of fact similar to those in the main negligence actions. The former require detailed testimony by expert witnesses, as well as complicated exhibits, delving into the make, construction and repair of the Katz vehicle; the latter merely involve a question as to which driver's negligence caused the collision. However, it was error for Special Term to sever the third-party action as against Michael Shipsey since it was timely commenced and also involves a question of negligence. Cohalan, J.P., Damiani, Hawkins and Mollen, JJ., concur.