From Casetext: Smarter Legal Research

Sichel v. Community Synagogue

Appellate Division of the Supreme Court of New York, First Department
Dec 29, 1998
256 A.D.2d 276 (N.Y. App. Div. 1998)

Summary

reversing trial court order severing action in part due to "the risk of inconsistent verdicts"

Summary of this case from Ambac Assurance Corp. v. Countrywide Home Loans, Inc.

Opinion

December 29, 1998

Appeal from the Supreme Court, New York County (Harold Tompkins, J.).


Plaintiff slipped and fell in front of the premises owned by defendant The Community Synagogue (Synagogue). In May 1996, he commenced this action for personal injuries against Synagogue and defendant D.H.I. Construction Services (DHI), a general contractor that had performed work there. Approximately one year later, DHI commenced a third-party action against third-party defendant Espo Construction, Inc. (Espo), a subcontractor that had performed work at the premises on the date of plaintiff's fall.

At a preliminary conference held on October 29, 1997, the IAS Court directed plaintiff to file a note of issue in the main action by November 5, 1997, and sua sponte severed the third-party action because discovery had not been completed. On November 4, 1997, DHI moved for an order modifying the October 29th preliminary conference order to the extent of consolidating the main action and third-party action for trial purposes only. The IAS Court denied the motion, characterizing it as a "motion to reargue."

The IAS Court's refusal to modify its sua sponte severance order was an improvident exercise of its discretion. Where two actions arise from a common nucleus of facts, a trial court should only sever the actions to prevent prejudice or substantial delay to one of the parties ( see, Rothstein v. Milleridge Inn, 251 A.D.2d 154; Andresakis v. Lynn, 236 A.D.2d 252). "To avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together [citation omitted] such as in a tort case where the issue is the respective liability of the defendant and the third-party defendant for the plaintiff's injury [citation omitted]" ( Rothstein v. Milleridge Inn, supra, at 155). That is exactly the situation here. Significantly, plaintiff's do not oppose consolidation and have not asserted any prejudice resulting from the third-party action ( supra). As the third-party action is now in a trial-ready posture, the actions should be tried together.

Contrary to Espo's argument, the order denying DHI's motion to modify the IAS Court's sua sponte order, which was made on notice, is appealable ( see, Everitt v. Health Maintenance Ctr., 86 A.D.2d 224, 227; see also, Rothstein v. Milleridge Inn, supra).

In light of our determination, DHI's motion for a stay is denied as academic.

Concur — Milonas, J. P., Ellerin, Rubin and Mazzarelli, JJ.


Summaries of

Sichel v. Community Synagogue

Appellate Division of the Supreme Court of New York, First Department
Dec 29, 1998
256 A.D.2d 276 (N.Y. App. Div. 1998)

reversing trial court order severing action in part due to "the risk of inconsistent verdicts"

Summary of this case from Ambac Assurance Corp. v. Countrywide Home Loans, Inc.
Case details for

Sichel v. Community Synagogue

Case Details

Full title:HOWARD SICHEL et al., Plaintiffs, v. COMMUNITY SYNAGOGUE, Defendant, and…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Dec 29, 1998

Citations

256 A.D.2d 276 (N.Y. App. Div. 1998)
682 N.Y.S.2d 382

Citing Cases

Nakasato v. 331 W. 51st Corp.

However, where complex issues of law and fact are inextricably interwoven and intertwined, courts typically…

Treuhold Capital Group v. Wissak

Discontinuance does not raise the same concerns as severance of Wissak's claims, which could lead to…