Todd v. Gull Contracting Co.

In a negligence action to recover damages for personal injury, in which the defendants served a third-party complaint, said defendants and third-party plaintiffs appeal from an order of the Supreme Court, Kings County, dated September 21, 1964, which, upon application of the third-party defendant pursuant to CPLR 1010 severed the third-party action from the main action. Order affirmed, with $10 costs and disbursements. Although the application for the severance was made on insufficient notice (CPLR 2212, 2214), the defect in service was waived by the appellants’ opposition to the application on the merits (Miot v. JoCarl Realty Corp., 20 A D 2d 664; Matter of Glasser, 180 Misc. 311). We find no abuse of discretion in the severance of the third-party action from the main action, in view of the tardiness of the institution of the third-party action and the resultant delay and prejudice both to the plaintiff and to the third-party defendant. The order of severance is appealable (CPLR 5701, subd. [a], par. 2). We note that Cohen v. Nadelman (269 App. Div. 951) is both distinguishable and overruled (cf. Winn v. Warren Lbr. Co., 11 A D 2d 713). Beldoek, P. J., ICleinfeld, Hill, Rabin and Hopkins, JJ., concur.