Todd v. Gull Contracting Co.

• Decision Date: 14 December 1964
• Citation: Todd v. Gull Contracting Co., 255 N.Y.S.2d 452, 22 A.D.2d 904 (N.Y. App. Div. 1964)
• Parties: George R. TODD, Plaintiff-Respondent, v. GULL CONTRACTING CO., Inc. et al., Defendants-Appellants. GULL CONTRACTING CO., Inc. and Horn Construction Co., Inc., etc., Defendants and Third-Party Plaintiffs-Appellants, v. AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION, Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 452

255 N.Y.S.2d 452

22 A.D.2d 904

George R. TODD, Plaintiff-Respondent, v. GULL CONTRACTING CO., Inc. et al., Defendants-Appellants.

GULL CONTRACTING CO., Inc. and Horn Construction Co., Inc., etc., Defendants and Third-Party Plaintiffs-Appellants, v. AMERICAN BRIDGE DIVISION, UNITED STATES STEEL CORPORATION,

Third-Party Defendant-Respondent.

Supreme Court, Appellate Division, Second Department.

Dec. 14, 1964.

George J. Conway, New York City, for appellant; Joseph M. Leahey, New York City, of counsel.

Melvin Sacks, New York City, for respondent; Harold M. Harkavy, New York City, of counsel.

Willkie, Farr, Gallagher, Walton & Fitzgibbon, New York City, for third-party respondent; Louis A. Craco, New York City, of counsel.

Before BELDOCK, P. J., and KLEINFELD, HILL, RABIN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injury, in which the defendants served a third-party complaint, said defendants and third-party plaintiffs appeal from an order of the Supreme Court, Kings County, dated September 21, 1964, which, upon application of the third-party defendant pursuant to rule 1010 of the CPLR, severed the third-party action from the main action.

Order affirmed, with $10 costs and desbursements.

Although the application for the severance was made on insufficient notice (CPLR 2212, 2214), the defect in service was waived by the appellants' opposition to the application on the merits (Miot v. JoCarl Realty Corp., 20 A.D.2d 664, 246 N.Y.S.2d 542; Matter of Glasser, 180 Misc. 311, 41 N.Y.S.2d 733).

We find no abuse of discretion in the severance of the third-party action from the main action, in view of the tardiness of the institution of the third-party action and the resultant delay and prejudice both to the plaintiff and to the third-party defendant.

The order of severance is appealable (CPLR 5701, subd. ...