Skolnick v Max Connor, LLC

Skolnick v Max Connor, LLC 2011 NY Slip Op 07716 Decided on November 3, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 3, 2011
Gonzalez, P.J., Mazzarelli, Sweeny, Abdus-Salaam, Román, JJ.
5779 300798/09 84286/09

[*1]Joan Skolnick, Plaintiff,

v

Max Connor, LLC, et al., Defendants. Max Connor, LLC, et al., Third-Party Plaintiffs-Appellants, J. Siebold Construction Corporation, Third-Party Defendant-Respondent.




Conway, Farrell, Curtin & Kelly P.C., New York (Jonathan T.
Uejio of counsel), for appellants.
The Law Offices of Jeffrey S. Shein & Associates, P.C.,
Syosset (Frank A. Polacco of counsel), for respondent.

Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered July 15, 2010, which, insofar as appealed from as limited by the briefs, granted third-party defendant's motion to dismiss the third-party complaint, unanimously affirmed, without costs.

The record establishes that dismissal of the third-party complaint under CPLR 1010 was a provident exercise of the court's discretion. Defendants/third-party plaintiffs delayed in bringing the third-party action until almost a year after the main action for personal injuries was commenced and months after the filing of the note of issue, despite being aware of a potential contractual indemnification claim against third-party defendant (see Grant v Wainer, 179 AD2d 364, 365 [1992]). The record supports the court's finding that the defendants "knowingly and deliberately delayed the commencement of the third-party action."

Third-party defendant was also prejudiced by the filing of the third-party complaint months after third-party defendant had dissolved its business and thus, as stated by counsel, no longer had access to employees or records (see Gomez v City of New York, 78 AD3d 482, 483 [2010]). This would put third-party defendant at a severe disadvantage in gathering evidence to defend itself (see id. at 483-484).

Additionally, CPLR 1010 authorizes discretionary dismissal of a third-party complaint where the controversy "will unduly delay the determination of the main action." Here, the 79-year-old plaintiff is entitled to a trial preference pursuant to CPLR 3403(a)(4). Her action, which is trial ready, should not be delayed because of defendants' failure to diligently pursue their claims against third-party defendants. It is noted that defendants and third-party plaintiffs did not [*2]seek a severance of the third-party claim.

We note that inasmuch as a CPLR 1010 dismissal is "without prejudice," defendants have a remedy in that they could commence a separate action for contractual indemnity and contribution pursuant to the terms of the contract.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 3, 2011

CLERK