| Kinberg v Kinberg |
| 2011 NY Slip Op 05577 [85 AD3d 673] |
| June 28, 2011 |
| Appellate Division, First Department |
| Sara Kinberg, Appellant, v Yoram Kinberg, Defendant, andJane Bevans, Respondent. |
—[*1] Jane Bevans, New York, respondent pro se.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered June 21, 2010, whichdenied plaintiff's motion to sever the action against defendant Jane Bevans, unanimouslyaffirmed. without costs.
Supreme Court appears to have inadvertently mistaken the order entered June 22, 2009,which was the subject of a prior appeal (77 AD3d 422 [2010]), with the order dated June 30,2009 and entered August 26, 2009. However, this factual oversight is of no consequence becauseplaintiff failed to demonstrate that she would be prejudiced if severance was not granted (see Williams v Property Servs., 6AD3d 255 [2004]). Indeed, where the consolidated actions at issue are not merely "all readyfor trial" (Kent v Papert Cos., 289 AD2d 127, 127 [2001]), but have already been triedand judgment entered accordingly, severance would be futile and "the interests of convenienceand avoidance of prejudice" is best served by denying the motion (Radiology Resource Network, P.C. vFireman's Fund Ins. Co., 12 AD3d 185, 186 [2004]; see Shanley v CallananIndus., 54 NY2d 52, 57 [1981]).
Furthermore, plaintiff's argument that the order entered June 30, 2009, which consolidatedthe fraud action against Bevans with the actions against defendant Kinberg, is void because itwas issued sua sponte, is unavailing. Those actions had already been consolidated by an orderdated October 5, 2007, which resolved a motion made on notice by plaintiff, as well as a crossmotion by Bevans made on notice, specifically requesting such relief. Contrary to plaintiff'scontention, judicial notice of the order dated October 5, 2007 is proper since it is an [*2]official court record (see RGH Liquidating Trust v Deloitte & Touche LLP, 71 AD3d198, 207 [2009], revd on other grounds — NY3d —, 2011 NY Slip Op05368 [2011]).
We have considered the remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and RomÁn, JJ.