Opinion
October 27, 1967
Appeal from an order of the Supreme Court, Tompkins County, which granted a motion to sever certain cross claims. The underlying facts are detailed in our memorandum decision upon a prior appeal ( 27 A.D.2d 899) which reversed the dismissal of appellant's cross claim against respondent. Plaintiff, the excavating subcontractor, seeks relief for additional work on theories of foreclosure of a mechanic's lien asserted against appellant, the owner; fraud asserted against respondent, the engineers; and on quantum meruit and conspiracy asserted against appellant, respondent and the general contractor. Appellant cross-claims against respondent for negligence and breach of its contractual duty in preparing improper specifications regarding excavating and grading, necessitating additional costs in doing such work. Respondent cross-claims because appellant allegedly furnished respondent with an improper grid plan of the premises. There is no dispute plaintiff did additional work beyond the original specifications. The question is the extent to which plaintiff is entitled to compensation and upon whom the ultimate cost of any such compensation should fall. All defendants must participate in the main action, since plaintiff alleges causes of action against them. The only issues which severance could be thought to remove from the main action are those of negligence, contributory negligence and breach of contract raised by the cross claim. There has been no showing that the relevant contractual relations, the alleged negligent acts or the alleged breach of contract are very complex. Moreover, if there is severance, plaintiff probably will be called as a witness in the trial of the cross claims, since appellant claims that "a bid price for the complete excavation job would have been less than a bid price for a part of the job plus a quantum meruit price for another part." A combined trial here does not pose any "grave danger that the merits of plaintiff's claim could easily be obscured" or that "the merits of defendant's claim may be prejudiced by the presentation of plaintiff's case," the test enunciated for dismissal of counterclaims in Knapp Engraving Co. v. Keystone Photo Engraving Corp. ( 1 A.D.2d 170, 173). (See, also, Ippisch v. Moricz-Smith, 1 A.D.2d 968; Rosenstiel v. Rosenstiel, 17 A.D.2d 728; Schneph v. New York Times Co., 21 A.D.2d 599.) Our legal system places great reliance on juries in far more complex cases than this and properly charged, jurors should be able to decide if this plaintiff is entitled to relief, and, if so, to allocate liability to one or more of the defendants. Refusal to sever, in the absence of likelihood of substantial prejudice or confusion, is mandated by the CPLR's intended liberality regarding counterclaims and the resolution of controversies in unified actions (see prior appeal, supra). We reach none of the other questions raised. Order reversed, on the law and the facts, with costs, and motion denied. Gibson, P.J., Reynolds, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Aulisi, J.