Opinion
February 21, 1963
Order, entered on December 18, 1962, insofar as it denies the cross motion of the third-party defendant to sever, unanimously reversed on the law and the facts and in the exercise of discretion, with $20 costs and disbursements to appellant, and cross motion granted, with $10 costs. Notwithstanding the main action has been at issue and ready for trial as between the plaintiff and defendant for about four years, the defendant waited to commence the third-party action until about the eve of the trial of the main action. Upon such action being reached on the Day Calendar for trial, the third-party action was not yet at issue and the third-party defendant had not been afforded an opportunity to conduct proper and necessary pretrial procedures. Under these circumstances, with the main action marked and standing ready for trial, the motion to sever the third-party action should have been granted. (See Civ. Prac. Act, §§ 96, 193-a, subd. 4; Kelly v. Yannotti, 4 N.Y.2d 603, 606.)
Concur — Rabin, J.P., McNally, Stevens, Eager and Steuer, JJ.