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Annanquartey v. Passeser

Appellate Division of the Supreme Court of New York, Second Department
Apr 19, 1999
260 A.D.2d 517 (N.Y. App. Div. 1999)

Opinion

April 19, 1999

Appeal from the Supreme Court, Kings County (Barron, J.).


Ordered that the order is reversed insofar as appealed from, as a matter of discretion, with costs, that branch of the third-party defendant's motion which was to dismiss the third-party complaint is denied, the third-party complaint is reinstated, and the matter is remitted to the Civil Court of the City of New York, Kings County, for further proceedings in accordance herewith.

The Supreme Court improvidently exercised its discretion by, in effect, granting that branch of the motion of the third-party defendant Mobile Air Transport (hereinafter Mobile) which was to dismiss the third-party action for indemnification against it pursuant to CPLR 1010. "CPLR 1010 provides a safety valve for cases in which the third-party claim 'will unduly delay the determination of the main action or prejudice the substantial rights of any party'" (Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 1010, at 134, quoting from CPLR 1010; see, Kelly v. Yannotti, 4 A.D.2d 767). In the instant case, the plaintiff in the main action does not claim that he will be unduly delayed by the appellants' impleader of Mobile ( see, Musco v. Conte, 22 A.D.2d 121, 126; see also, Erbach Fin. Corp. v. Royal Bank, 203 A.D.2d 80). Nor, if trial of the main action is stayed pending completion of disclosure by Mobile, can Mobile claim any prejudice by reason of the appellants' delay in bringing their third-party action for indemnity ( Musco v. Conte, supra; cf., Cusano v. Sankyo Seiki Mfg. Co., 184 A.D.2d 489, 490). Additionally, Mobile should be afforded an adequate opportunity to conduct its discovery in the third-party action.

Finally, we note that in the order appealed from, the Supreme Court also ordered the action removed to the Civil Court of the City of New York, Kings County, pursuant to CPLR 325 (d). As none of the parties appeal from that portion of the order, we remit the action to that court.

Mangano, P. J., Santucci, Krausman and Florio, JJ., concur.


Summaries of

Annanquartey v. Passeser

Appellate Division of the Supreme Court of New York, Second Department
Apr 19, 1999
260 A.D.2d 517 (N.Y. App. Div. 1999)
Case details for

Annanquartey v. Passeser

Case Details

Full title:MAXWELL ANNANQUARTEY, Plaintiff, v. BARRY M. PASSESER et al., Defendants…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 19, 1999

Citations

260 A.D.2d 517 (N.Y. App. Div. 1999)
688 N.Y.S.2d 252

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