Opinion
2012-01-24
WHIPPOORWILL HILLS HOMEOWNERS ASSOCIATION, INC., etc., plaintiff-respondent, v. TOLL AT WHIPPOORWILL, L.P., et al., defendants third-party plaintiffs-appellants, et al., defendant;MM Construction, third-party defendant-respondent,A.P. Roofing & Siding, Inc., third-party defendant/second third-party plaintiff/third third-party plaintiff-respondent;Axe Siding Company, Inc., et al., second third-party defendants;P & R Universal Painting, et al., third third-party defendants-respondents(and a fourth third-party action).
McCarter & English, New York, N.Y. (Robert S. Bernstein and Renee A. Gallagher of counsel), for defendants third-party plaintiffs-appellants. Brill & Associates, P.C., New York, N.Y. (Corey M. Reichardt of counsel), for third-party defendant-respondent.
McCarter & English, New York, N.Y. (Robert S. Bernstein and Renee A. Gallagher of counsel), for defendants third-party plaintiffs-appellants. Brill & Associates, P.C., New York, N.Y. (Corey M. Reichardt of counsel), for third-party defendant-respondent.
White and Williams, LLP, New York, N.Y. (Rafael Vergara of counsel), and O'Connor Redd, LLP, White Plains, N.Y. (Steven R. Lau of counsel), for third-party defendant/second third-party plaintiff/third third-party-plaintiff-respondent (one brief filed).Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for third third-party defendants-respondents.
In an action, inter alia, to recover damages for negligence, the defendants third-party plaintiffs appeal from (1) so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered September 15, 2010, as granted those branches of the motion of third-party defendant MM Construction, the separate motion of the third-party defendant A.P. Roofing & Siding, Inc., and the separate motion of the third third-party defendants, P & R Universal Painting and Piotr Androsz, individually and doing business as P & R Universal Painting, which were to sever the third-party actions, and (2) so much of an order of the same court dated January 13, 2011, as, upon reargument, adhered to the original determination.
ORDERED that the appeal from the order entered September 15, 2010, is dismissed, as the portion of that order appealed from was superseded by the order dated January 13, 2011, made upon reargument; and it is further,
ORDERED that the order dated January 13, 2011, is affirmed insofar as appealed from; and it is further,
ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.
Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in directing the severance of the third-party actions at issue from the main action. Severance will avoid undue delay in the main action, which was commenced more than four years ago and has been certified ready for trial, and will avoid prejudice to the third-party defendants, who have not had an adequate opportunity to complete discovery ( see CPLR 1010; Meczkowski v. E.W. Howell Co., Inc., 63 A.D.3d 803, 804, 880 N.Y.S.2d 507; Abreo v. Baez, 29 A.D.3d 833, 834, 814 N.Y.S.2d 536; Wassel v. Niagara Mohawk Power Corp., 307 A.D.2d 752, 762 N.Y.S.2d 854; Singh v. City of New York, 294 A.D.2d 422, 423, 741 N.Y.S.2d 915).