ESCOURSE v. [And a Third-Party Action].

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Supreme Court, Appellate Division, First Department, New York.

Jermeal ESCOURSE, etc., et al., Plaintiffs-Appellants, v. The CITY OF NEW YORK, et al., Defendants-Respondents. [And a Third-Party Action].

Decided: March 21, 2006

TOM, J.P., GONZALEZ, SWEENY, CATTERSON, MALONE, JJ. Hill & Moin LLP, New York (Cheryl Eisberg Moin of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Suzanne K. Colt of counsel), for respondents.

Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered November 23, 2004, which denied plaintiffs' motion to sever the third-party action and third-party defendant's cross motion to dismiss the third-party complaint, unanimously affirmed, without costs.

The denial of plaintiffs' motion to sever was a provident exercise of discretion notwithstanding defendants' delay in commencing the third-party action (CPLR 1010;  see Shanley v. Callanan Indus., 54 N.Y.2d 52, 57, 444 N.Y.S.2d 585, 429 N.E.2d 104 [1981];  Wilson v. City of New York, 1 A.D.3d 157, 766 N.Y.S.2d 841 [2003];  Klein v. City of Long Beach, 154 A.D.2d 346, 545 N.Y.S.2d 825 [1989] ).   We note that due to plaintiffs' own delays, the action was stricken from the trial calendar while the instant motions were pending.   Furthermore, by filing a note of issue stating that disclosure was complete, plaintiffs waived any defects in defendants' response to the November 1999 conditional order of preclusion (see Simpson v. City of New York, 10 A.D.3d 601, 602, 781 N.Y.S.2d 683 [2004] ).   Thus, the motion court properly declined to strike defendants' answer.