The following papers numbered 1 to 26 were read on this motion by the third-party defendant, URS CORPORATION - NEW YORK, and the cross-motion of third-party defendant, DANCO ELECTRICAL CONTRACTOR, INC., for an order pursuant to CPLR 1010 and CPLR 603 dismissing the third-party complaint on the ground that the third-party action was untimely commenced after the filing of the Note of Issue and that a trial of the third-party action with the [*2]underlying action will unduly delay the determination of the main action; or in the alternative severing the third-party complaint:

Papers Numbered

URS Notice of Motion-Affidavits-Exhibits............1 - 6

NYC HOUSING AUTHORITY Affirmation in Opposition.....7 - 10

URS Reply Affirmation..............................11 - 14

DANCO Cross-Motion-Affidavits-Exhibits.............15 - 19

NYC HOUSING AUTHORITY Affirmation in Opposition....20 - 23

DANCO Reply Affirmation............................24 - 26

This is an action for damages for personal injuries allegedly sustained by the plaintiff, BRENDA BOYCE, on December 7, 2010, when she slipped and fell in a parking lot owned by NEW YORK CITY HOUSING AUTHORITY (NYCHA) located at 402 Beach 58th Street, Far Rockaway, New York.

The plaintiff commenced this action against the NEW YORK CITY HOUSING AUTHORITY on October 11, 2011 asserting a cause of action for negligence premised on the NYCHA'S ownership of the subject premises and on the ground that NYCHA allowed the sidewalk or a raised divider in the parking lot to become broken, cracked, raised, depressed, uneven, dangerous, defective, and unsafe. As a result of the trip and fall the plaintiff allegedly sustained serious physical injuries.

Thereafter, a preliminary conference order was rendered on March 8, 2012, and a compliance conference order was rendered on October 16, 2012. Plaintiff filed a Note of Issue and Certificate of Readiness on February 8, 2013, affirming that all discovery was complete in the main action except that examinations before trial of all parties were outstanding and plaintiff's IMEs were outstanding. The matter appeared in the Trial Scheduling Part on December 12, 2013 at which time Justice Rosengarten vacated the Note of Issue and restored the matter to pre-note of issue status on the ground that significant discovery remained outstanding.

Plaintiff testified at a statutory hearing on June 1, 2011 that there had been ground work and construction around and near the area where she fell. Based upon that testimony, NYCHA, commenced a third-party action against defendants on July 22, 2013. In the third-party complaint, NYCHA alleged that the NYCHA entered into contracts with third-party defendants Navillus Tile, [*3]Inc., Danco Electrical Contractor, URS, and LiRo Program and Construction Management, PC for construction work at Ocean Bay Apartments and that the plaintiff's injuries occurred as a result of the third-party defendants' performance of their work at the subject premises. NYCHA asserts that pursuant to the terms of their contracts, third-party defendants are required to indemnify defendant and hold harmless third-party plaintiff for damages incurred by NYCHA. Thus, NYCHA seeks contribution for negligence, contractual and common law indemnification as well as damages for breach of contract for alleged failure to procure insurance.

Third-party defendant, URS CORPORATION - NEW YORK and third-party defendant, DANCO ELECTRICAL CONTRACTOR, INC., move to dismiss on the ground of laches claiming that plaintiff's testimony at the 50-h hearing regarding construction work at the scene was given two years prior to the commencement of the third- party action. Morever, third-party defendants contend that the preliminary conference order dated February 28, 2012 required all third-party actions to be commenced prior to the date of the compliance conference which was held on September 12, 2012. Further, defendants contend that the third-party actions must be dismissed or severed due to untimeliness as the plaintiff filed a Note of Issue in February 2013 certifying the case was ready for trial but commenced the third-party action on the eve of trial in July 2013, five months later.

Third-party defendants contend that their rights will be substantially prejudiced if they are required to proceed to trial without the opportunity to conduct full and fair discovery. Defendants contends that the NYCHA is guilty of laches in that they failed to commence the third-party action until the eve of trial despite being aware of the plaintiff's testimony regarding third-party defendants' alleged construction work in the parking lot for two years. Counsel contends that the third-party action should be dismissed as the NYCHA has failed to provide a reasonable excuse for its delay in instituting the third-party action.

In the alternative, third-party defendants move for an order severing the third-party action on the ground that third-party defendants will be substantially prejudiced as a Note of Issue has been filed in the main action and third-party defendants still need appropriate time to review the prior pleadings and prior discovery as well as time to conduct their own discovery, IMEs, at least six depositions, investigation of the matter, and time to make summary judgment motions. Third-party defendants claim that if the third-party action is not severed than it will be prejudiced by having to conduct a substantially abbreviated [*4]discovery schedule (citing Skolnick v Max Connoe LLC, 89 AD3d 443 [1st Dept. 2011] Santos v Sure Iron Works, 166 AD2d 571 [2d Dept. 1990]). Lastly, the third-party defendants argue that there is no common issue of law or fact between the work of the third-party defendants and the plaintiff's fall in the NYCHA parking lot.

NYCHA has opposed the motions stating that severing the third-party actions would not serve the interests of judicial economy as the principal issue in the plaintiff's claim for damages and in the third-party indemnification action is whether the plaintiff's injury was caused by the negligence of NYCHA or by construction debris in the parking lot. Secondly, NYCHA argues that there is no prejudice to the third-party defendants since discovery in the main action and the third-party actions can proceed together prior to trial because there is still outstanding discovery in the main action.

NYCHA also argues that severance might result in inconsistent verdicts and that the third-party action should not be severed as there is a common issues of fact and law based upon the plaintiff's testimony at the statutory hearing that the condition of the sidewalk in the parking lot where she fell had been created by the construction work at the parking lot (citing Leavitt v New York City Transit Authority, 111 AD2d 907 [2d Dept. 1985]). NYCHA also contends that the third-party defendants have not shown how they will be substantially prejudiced by a joint trial as there is still a significant amount of discovery that is outstanding in the main action that remains to be completed, including the deposition of the plaintiff and NYCHA and thus discovery in both actions can proceed together. Counsel also states that NYCHA has sent to the third-party defendants all of the discovery that has taken place in the main action.

Upon review and consideration of the motions by third-party defendants, the respective affirmations in opposition, and replies thereto, this court finds that the motion to dismiss the third-party complaint or to sever the third-party action from the main action is denied. "To avoid the waste of judicial resources and the risk of inconsistent verdicts, it is preferable for related actions to be tried together such as in a tort case where the issue is the respective liability of the defendant and the third-party defendant for the plaintiff's injury" (see Herrera v. Municipal Hous. Auth. of City of Yonkers, 107 AD3d 949 [2d Dept. 2013] Boeke v Our Lady of Pompei School, 73 AD3d 825 [2d Dept. 2010] Sichel v Community Synagogue, 256 AD2d 276 [1st Dept. 1998]). "The joint trial format can serve judicial efficiency and avoid the risk of inconsistent verdicts" (see Vecciarelli v King [*5]Pharms., Inc., 71 AD3d 595 [1st Dept. 2010] Curreri v. Heritage Prop. Inv. Trust, Inc., 48 AD3d 505 [2d Dept. 2008][severance denied where the court found there were common factual and legal issues involved and the interests of judicial economy and consistency of verdicts will be served by having a single trial]).

This court finds therefore, that since there are common factual and legal issues involved, the interests of judicial economy and consistency of verdicts will be served by having a single trial (see New York Cent. Mut. Ins. Co. v McGee, 87 AD3d 622 [2d Dept. 2011] Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135 [2d Dept. 2011] Quiroz v Beitia, 69 AD3d 957 {2d Dept. 2009]).

Moreover, as the Note of Issue was recently stricken on December 12, 2013 by order of Justice Rosengarten, and as the primary action is no longer on the trial calendar, this court finds that there will not be any prejudice or undue delay to the plaintiff or third-party defendants as there is now sufficient time to conduct discovery prior to the time the case is calendared for trial (see Nielsen v New York State Dormitory Auth., 84 AD3d 519 [1st Dept. 2011] Solano v Castro, 72 AD3d 932 [2d Dept. 2010]). Any claimed prejudice by reason of the NYCHA's delay in bringing its third-party action is curable by affording third-party defendants an adequate opportunity to conduct any necessary discovery.

Therefore, for all of the above stated reasons, it is hereby,

ORDERED, that the motion of URS CORPORATION - NEW YORK and the cross-motion of third-party defendant, DANCO ELECTRICAL CONTRACTOR, INC., to dismiss or sever the third-party action is denied.

Dated: March 3, 2014

Long Island City, NY

______________________________ [*6]

ROBERT J. MCDONALD

J.S.C.