Robert Costanza v Skyline Towers 5

Costanza v Skyline Towers 5 2004 NY Slip Op 05406 [8 AD3d 524] June 21, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Robert Costanza, Plaintiff,
v
Skyline Towers 5 et al., Defendants and Third-Party Plaintiffs-Respondents. P.S. Marcato Elevator Co., Inc., Third-Party Defendant-Appellant.

—[*1]In an action to recover damages for personal injuries, the third-party defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated January 13, 2004, which, in effect, denied those branches of its motion which were to sever the third-party action and to vacate the note of issue and granted that branch of its motion which was, in the alternative, to compel discovery only to the extent of directing a deposition of the defendants third-party plaintiffs and a physical examination of the plaintiff.

Ordered that the order is modified, on the law and as a matter of discretion, by (1) deleting the provision thereof granting that branch of the motion which was, in the alternative, to compel discovery only to the extent of directing a deposition of the defendants third-party plaintiffs and a physical examination of the plaintiff, and (2) deleting the provision thereof, in effect, denying that branch of the motion which was to vacate the note of issue and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

Under the circumstances, the Supreme Court improvidently exercised its discretion in denying that branch of the appellant's motion which was to vacate the note of issue in order to permit it to conduct discovery proceedings (see generally Audiovox Corp. v Benyamini, 265 AD2d 135 [2000]; 22 NYCRR 202.21 [e]). [*2]

In view of our determination, we do not reach the appellant's contention that the third-party action should have been severed. Florio, J.P., Luciano, Townes and Fisher, JJ., concur.