| DeLeon v 650 W. 172nd St. Assoc. |
| 2007 NY Slip Op 07315 [44 AD3d 305] |
| October 2, 2007 |
| Appellate Division, First Department |
| Richardson DeLeon et al., Plaintiffs, v 650 West 172ndStreet Assoc. et al., Defendants and Third-Party Plaintiffs. Joseph Abram, Doing Business asJoseph Abram Contracting, Third-Party Defendant. 650 West 172nd Street Assoc. et al., SecondThird-Party Plaintiffs-Respondents, v Jake Realty, LLC, et al., Second Third-PartyDefendants-Appellants. |
—[*1] McGivney & Kluger, P.C., New York (Christopher A. Bacotti of counsel), forrespondents.
Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 16, 2007,which, in an action to recover for lead paint injuries against the owners of premises where infantplaintiff resided (respondents), and a second third-party action by respondents against the ownersof premises where infant plaintiff received day care (appellants), insofar as appealed from, deniedappellants' cross motion to dismiss or sever the second third-party complaint, or, in thealternative, vacate the note of issue, unanimously affirmed, without costs.
It appears that although a July 13, 2004 preliminary conference order directed that disclosurein any third-party actions be completed by April 14, 2005, respondents did not commence thesubject second third-party action against appellants until on or about September 14, 2006, whichwas also well after the January 31, 2005 filing of the note of issue, and less than three monthsbefore the scheduled trial date. Countering an October 19, 2006 motion by respondents for adefault judgment, appellants cross-moved, on December 4, 2006, to dismiss or sever the secondthird-party complaint, or, in the alternative, vacate the note of issue. Insofar as [*2]pertinent, Supreme Court denied appellants' cross motion, but,noting plaintiff's nonappearance on the motions, struck the action from the trial calendar (whilekeeping the note of issue in effect), and directed that the action not be restored to the calendarexcept upon application to the court made after completion of specified disclosure designed tosatisfy appellants' claimed disclosure needs. No basis exists to disturb this exercise of discretion,which, given virtually identical factual and legal issues in the main and second third-partyactions, promotes judicial economy, and, by giving appellants sufficient time to undertake andcomplete disclosure, eliminates the prejudice caused by respondents' undue delay in commencingthe second third-party action (see Fries v Sid Tool Co., 90 AD2d 512 [1982]; see alsoRothstein v Milleridge Inn, 251 AD2d 154, 155 [1998] [if prejudice can be avoided,preferable that parties' respective liabilities for same personal injury be tried together]).Concur—Lippman, P.J., Tom, Nardelli, Gonzalez and Kavanagh, JJ.