Opinion
April 30, 1996
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The main action is one in contract seeking to recover payment thereunder; defendant asserted by way of defense and counterclaim breach of certain conditions. The action proceeded to completion of discovery and the setting of a trial date when, almost three years after commencement of the action, plaintiffs commenced a third-party action against an engineering firm upon which they seek to impose any liability with respect to the counterclaims. Inasmuch as there exist a plethora of issues requiring extensive disclosure in the third-party action, which issues are not present in the main action, and differences in the issues of law and fact presented by the two actions, and in view of plaintiffs' awareness of the third-party defendant's performance of services in connection with the claimed breach of contract from the very inception of the main action, it was a proper exercise of discretion to order a severance ( see, Blechman v. Peiser's Sons, 186 A.D.2d 50, 51-52; Vita Food Prods. v. Epstein Sons, 52 A.D.2d 522).
Concur — Murphy, P.J., Rubin, Kupferman, Ross and Tom, JJ.