NECKLES v. VW CREDIT INC (2005)

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered January 5, 2005, which granted plaintiff's motion to sever the third-party complaint, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion denied.

The motion court erred in granting plaintiff's motion to sever the main action from the third-party action.   The main and third-party actions involve common factual and legal issues which should be tried together (see Stark v. Greenberg, Dauber & Epstein, 219 A.D.2d 571, 631 N.Y.S.2d 349 [1995];  see also Vitiello v. Mayrich Construction Corp., 255 A.D.2d 182, 184, 680 N.Y.S.2d 482 [1998] ).   Furthermore, plaintiff does not claim that further disclosure is required (compare 17 Vista Fee Assoc. v. Teachers Ins. & Annuity Assn. of America, 226 A.D.2d 298, 642 N.Y.S.2d 625 [1996] ), or that the trial in the main action otherwise will be delayed if the motion is denied.   Moreover, denial of plaintiff's motion to sever will allow the third-party defendant, who may be liable for indemnification to appellant, to participate in the damages phase of the first-party action (see Graziano v. 118-17 Liberty Ave. Mgt. Corp., 209 A.D.2d 582, 583, 619 N.Y.S.2d 102 [1994] ).   Finally, plaintiff's claim of prejudice is speculative and unsupported by the record.