Lorne v 50 Madison Ave. LLC

Lorne v 50 Madison Ave. LLC 2010 NY Slip Op 04447 [73 AD3d 621] May 25, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2010

Simon Lorne et al., Respondents,
v
50 Madison Avenue LLC et al., Appellants, et al., Defendants. 50 Madison Avenue LLC et al., Third-Party Plaintiffs-Appellants, v RCDolner LLC, Third-Party Defendant-Appellant, and Commodore Construction Corp., Third-Party Defendant-Respondent, et al., Third-Party Defendants. RCDolner LLC, Fourth-Party Plaintiff-Appellant, v Olympic Plumbing & Heating Corp. et al., Fourth-Party Defendants-Respondents, et al., Fourth-Party Defendants. (And a Third-Party Action.)

—[*1] Epstein Becker & Green, P.C., New York (Adrian Zuckerman and Ralph Berman of counsel), for 50 Madison Avenue LLC and Samson Management LLC, appellants.

Wasserman Grubin & Rogers, LLP, New York (Suzan Arden of counsel), for RCDolner LLC, [*2]appellant.

Zetlin & DeChiara LLP, New York (James H. Rowland of counsel), for Lorne respondents.

Newman Myers Kreines Gross Harris, P.C., New York (Adrienne Yaron of counsel), for Commodore Construction Corp., respondent.

Stalker, Vogrin, Bracken & Frimet, LLP, New York (Konstantinos Katsaros of counsel), for Olympic Plumbing & Heating Corp., respondent.

Babchik & Young LLP, White Plains (Bryan J. Weisburd of counsel), for Thyssen Krupp Elevators, respondent.

Law Offices of James J. Toomey, New York (Eric P. Tosca of counsel), for Service Glass & Store Fronts, Inc., respondent.

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 6, 2009, which granted plaintiffs' motion as well as motions and a cross motion by certain third- and fourth-party defendants for an order severing the third- and fourth-party actions from the main action, unanimously affirmed, with costs.

Plaintiff purchasers alleged, inter alia, breach of a condominium purchase/sale agreement and its attendant warranties. The third- and fourth-party actions involved sponsor/general contractor claims against contractors and subcontractors for liability/indemnification arising from allegedly defective workmanship and design. Severance of claims (CPLR 603) was a proper exercise of judicial discretion here, since the sponsor and property manager essentially admitted the existence of alleged material defects in the flooring of plaintiffs' unit. We note that a substantial period of delay was occasioned by the meritless motion to dismiss made by defendants 50 Madison and Samson. Plaintiffs would be prejudiced by burdensome discovery in connection with the 13 additional parties representing the allegedly negligent contractors and subcontractors. While the claims of defective workmanship and design in the main action are shared in the third- and fourth-party actions, there appears to be little likelihood of inconsistent judgments where the sponsor and property manager have effectively acknowledged that these defects were responsible for plaintiffs' displacement. Concur—Andrias, J.P., Saxe, McGuire, Moskowitz and Freedman, JJ.