Sims v. N.Y. Hous. Auth.

Full title: Louis Sims, Plaintiff-Respondent, v. New York City Housing Authority…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Apr 7, 2015

2015 N.Y. Slip Op. 2907 (N.Y. App. Div. 2015)

Opinion

14725 111504/09

04-07-2015

Louis Sims, Plaintiff-Respondent, v. New York City Housing Authority, Defendant-Appellant. New York City Housing Authority, Third-Party Plaintiff-Appellant, Lend Lease (US) Construction LMB, Inc., formerly known as Bovis Lend Lease LMB, Inc., Third-Party Defendant. [And a Second Third-Party Action]

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant. Faber & Troy, Woodbury, (Salvatore V. Agosta of counsel), for respondent.

Friedman, J.P.

, Acosta, Moskowitz, Richter, Kapnick, JJ.

Herzfeld & Rubin, P.C., New York (Linda M. Brown of counsel), for appellant.

Faber & Troy, Woodbury, (Salvatore V. Agosta of counsel), for respondent.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 16, 2014, which denied defendant-third-party plaintiff, New York City Housing Authority's (NYCHA) motion to vacate an order, same court and Justice, entered July 2, 2014, inter alia, severing, sua sponte, the third-party and second-third-party actions, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion granted, the July 2, 2014 order vacated, and the matter remanded for further proceedings, including a determination of the motion by Lend Lease (US) Construction LMB, Inc., formerly Bovis Lend Lease LMB, Inc. (Lend Lease), for an additional deposition of the plaintiff.

The court improvidently exercised its discretion by refusing to vacate the severance order, where the actions had a common nucleus of facts, no party had been seeking severance at the time, and no party had opposed NYHCA's motion to vacate the sua sponte grant of severance. Nor had any party argued that they would be prejudiced by a joint trial of the main and third-party actions, or that such trial would result in substantial delay (see Shanley v Callanan Indus., 54 NY2d 52, 57 [1981]; Vecciarelli v King Pharms., Inc., 71 AD3d 595, 596 [1st Dept 2010]; Sichel v Community Synagogue, 256 AD2d 276 [1st Dept 1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 7, 2015

CLERK