Coffee v Tank Indus. Consultants, Inc.

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Coffee v Tank Indus. Consultants, Inc. 2015 NY Slip Op 08536 Decided on November 20, 2015 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ.
1050 CA 15-00267

[*1]JUSTIN COFFEE, PLAINTIFF-APPELLANT,

v

TANK INDUSTRY CONSULTANTS, INC. AND WORLDWIDE INDUSTRIES CORP., DEFENDANTS-RESPONDENTS. ————————————————————————— WORLDWIDE INDUSTRIES CORP., THIRD-PARTY PLAINTIFF, CDK INDUSTRIES, INC., THIRD-PARTY DEFENDANT-RESPONDENT.



STANLEY LAW OFFICES, LLP, SYRACUSE (JON COOPER OF COUNSEL), FOR PLAINTIFF-APPELLANT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN A. DAVOLI OF COUNSEL), FOR DEFENDANT-RESPONDENT TANK INDUSTRY CONSULTANTS, INC.

GOLDBERG SEGALLA LLP, SYRACUSE (NICHOLAS PONTZER OF COUNSEL), FOR DEFENDANT-RESPONDENT WORLDWIDE INDUSTRIES CORP.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (CHRISTOPHER DEFRANCESCO OF COUNSEL), FOR THIRD-PARTY DEFENDANT-RESPONDENT.



Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered November 14, 2014. The order, among other things, denied without prejudice the motion of plaintiff to sever the third-party action and granted the motion of third-party defendant to strike the note of issue.

Now, upon reading and filing the stipulation discontinuing the action against defendant Tank Industry Consultants, Inc., signed by the attorneys for the parties on June 22, 2015, and filed in the Onondaga County Clerk's Office on July 10, 2015,

It is hereby ORDERED that said appeal insofar as it concerns defendant Tank Industry Consultants, Inc. is unanimously dismissed upon stipulation and the order is affirmed without costs.

Memorandum: Plaintiff commenced this common-law negligence and Labor Law action seeking damages for injuries he sustained when he fell from a hoist ladder. Plaintiff moved pursuant to CPLR 1010 to sever the third-party indemnification action from the main action, and third-party defendant, CDK Industries, Inc. (CDK), moved to strike the note of issue. Supreme Court denied plaintiff's severance motion without prejudice, and granted the motion to strike. We affirm.

Contrary to plaintiff's contention, the court did not abuse its discretion in denying his severance motion where, as here, plaintiff failed to show substantial prejudice (see CPLR 1010; Quinn v Broder, 225 AD2d 1110, 1110; see also Nielsen v New York State Dormitory Auth., 84 AD3d 519, 520). The court also properly granted the motion to strike because, inter alia, the third-party action was commenced after the note of issue was filed in the main action, and CDK [*2]had outstanding requests for discovery (see 22 NYCRR 202.21 [e]).

Entered: November 20, 2015

Frances E. Cafarell

Clerk of the Court