Summary
In Marbilla, LLC v 143/145 Lexington LLC (116 AD3d 544, 544 [1st Dept 2014]), the Appellate Division, First Department held that the motion court properly denied motions to sever where "the third-party actions will not unduly delay the determination of the main action or prejudice the substantial rights of [movant] or any other party, and [movant's] discovery rights have been accommodated" and where "[t]he third-party actions present questions of law and fact in common with the main action, and thus a joint trial is preferable."
Summary of this case from Morris v. City of N.Y.Opinion
2014-04-15
MARBILLA, LLC, Plaintiff, v. 143/145 LEXINGTON LLC, et al., Defendants. [And Other Third–Party Actions] M & R European Construction Corp., Sixth Third–Party Plaintiff–Respondent, v. Skyscraper Steel Corp., Sixth Third–Party Defendant–Appellant. 143/145 Lexington Avenue LLC, Plaintiff, v. M & R European Construction Corp., et al., Defendants. [And Third–Party Actions] M & R European Construction Corp., Third Third–Party Plaintiff–Respondent, v. Skyscraper Steel Corp., Third Third–Party Defendant–Appellant.
Hannum Feretic Prendergast & Merlino, LLC, New York (Sean M. Prendergast of counsel), for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for respondent.
Hannum Feretic Prendergast & Merlino, LLC, New York (Sean M. Prendergast of counsel), for appellant. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Joel M. Simon of counsel), for respondent.
TOM, J.P., ACOSTA, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, New York County (Louis B. York, J.), entered February 7, 2013, which denied sixth third-party defendant Skyscraper Steel Corp.'s (Skyscraper) motion pursuant to CPLR 1010 to dismiss the sixth third-party complaint and all cross claims against it or, in the alternative, pursuant to CPLR 603 and 1010 to sever the sixth third-party action, unanimously affirmed, without costs. Order, Supreme Court, New York County (Louis B. York, J.), entered January 25, 2013, which denied third third-party defendant Skyscraper's motion pursuant to CPLR 1010 to dismiss the third third-party complaint and all cross claims against it or, in the alternative, pursuant to CPLR 603 and 1010 to sever the third third-party action, unanimously affirmed, without costs.
The motion court properly denied Skyscraper's motions to dismiss or sever. The third-party actions will not unduly delay the determination of the main action or prejudice the substantial rights of Skyscraper or any other party, and Skyscraper's discovery rights have been accommodated ( see Nielsen v. New York State Dormitory Auth., 84 A.D.3d 519, 923 N.Y.S.2d 66 [1st Dept.2011];Erbach Fin. Corp. v. Royal Bank of Can., 203 A.D.2d 80, 610 N.Y.S.2d 20 [1st Dept.1994] ). The third-party actions present questions of law and fact in common with the main action, and thus a joint trial is preferable ( see Rothstein v. Milleridge Inn, 251 A.D.2d 154, 674 N.Y.S.2d 346 [1st Dept.1998] ). Defendant M & R European Construction Corp. provided a reasonable justification for bringing the third-party actions more than six years after the initial action was filed, i.e. that it was unaware of Skyscraper's potential liability until the deposition of a previously unavailable witness was taken.
We have considered Skyscraper's remaining contentions and find them unavailing.