CARVAJAL v. Flushing Hospital Medical Center, defendant third-party plaintiff-respondent, et al., defendant. (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant third-party defendant appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), dated January 22, 2024.  The order, insofar as appealed from, denied that branch of the defendant third-party defendant's motion which was pursuant to CPLR 1010 to dismiss the third-party action or, in the alternative, to sever the third-party action from the main action.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In August 2019, the plaintiff commenced this action (hereinafter the main action) against the defendants Alejandro Alcaide, Flushing Hospital Medical Center (hereinafter FHMC), and another individual, to recover damages she alleged she sustained during a surgical procedure.  The plaintiff did not file an affidavit of service for Alcaide, and FHMC was the only defendant that appeared in the main action.  After discovery, FHMC moved for summary judgment dismissing the complaint insofar as asserted against it.  In an order dated June 6, 2023, the Supreme Court denied FHMC's motion.  In November 2023, FHMC commenced a third-party action seeking indemnification against Alcaide.  Alcaide moved, inter alia, pursuant to CPLR 1010 to dismiss the third-party action or, in the alternative, to sever the third-party action from the main action.  In an order dated January 22, 2024, the court, among other things, denied that branch of the motion.  Alcaide appeals.

“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” (Annanquartey v. Passeser, 260 A.D.2d 517, 517, 688 N.Y.S.2d 252 [internal quotation marks omitted];  see CPLR 1010).

The Supreme Court providently exercised its discretion in denying that branch of Alcaide's motion which was pursuant to CPLR 1010 to dismiss the third-party action or, in the alternative, to sever the third-party action from the main action.  Notwithstanding FHMC's delay in commencing the third-party action, Alcaide's discovery rights can be accommodated, and Alcaide has not otherwise demonstrated prejudice due to his having been impleaded at this juncture (see Maltese v. Port Auth. of N.Y. & N.J., 204 A.D.3d 542, 542, 165 N.Y.S.3d 277;  Range v. Trustees of Columbia Univ. in the City of N.Y., 150 A.D.3d 515, 516, 54 N.Y.S.3d 391).  Further, there is no indication that the brief additional delay to permit discovery in the third-party action will cause substantial prejudice to the plaintiff in the main action (see Annanquartey v. Passeser, 260 A.D.2d at 517–518, 688 N.Y.S.2d 252;  Klein v. City of Long Beach, 154 A.D.2d 346, 347, 545 N.Y.S.2d 825).

Moreover, while “it is within a trial court's discretion to grant a severance, this discretion should be exercised sparingly” (Nieto v. 1054 Bushwick Ave, LLC, 219 A.D.3d 754, 755, 195 N.Y.S.3d 85 [internal quotation marks omitted];  see New York Schs. Ins. Reciprocal v. Milburn Sales Co., Inc., 138 A.D.3d 940, 941, 31 N.Y.S.3d 102).  Here, the Supreme Court providently exercised its discretion in declining to sever the third-party action from the main action.  The third-party action raises factual and legal issues in common with the main action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial (see Nieto v. 1054 Bushwick Ave, LLC, 219 A.D.3d at 755–756, 195 N.Y.S.3d 85;  Maltese v. Port Auth. of N.Y. & N.J., 204 A.D.3d at 542, 165 N.Y.S.3d 277).

Accordingly, the Supreme Court providently exercised its discretion in denying that branch of Alcaide's motion which was pursuant to CPLR 1010 to dismiss the third-party action or, in the alternative, to sever the third-party action from the main action.

Alcaide's remaining contention is without merit.

DUFFY, J.P., MILLER, CHRISTOPHER and WAN, JJ., concur.