JUSTIN COFFEE PLAINTIFF APPELLANT v. TANK INDUSTRY CONSULTANTS INC AND WORLDWIDE INDUSTRIES CORP DEFENDANTS RESPONDENTS

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Supreme Court, Appellate Division, Fourth Department.

JUSTIN COFFEE, PLAINTIFF–APPELLANT, v. TANK INDUSTRY CONSULTANTS, INC. AND WORLDWIDE INDUSTRIES CORP., DEFENDANTS–RESPONDENTS.

WORLDWIDE INDUSTRIES CORP., THIRD–PARTY PLAINTIFF, v. CDK INDUSTRIES, INC., THIRD–PARTY DEFENDANT–RESPONDENT.

CA 15–00267

Decided: November 20, 2015

PRESENT:  SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND DEJOSEPH, JJ. STANLEY LAW OFFICES, LLP, SYRACUSE (JON COOPER OF COUNSEL), FOR PLAINTIFF–APPELLANT. SUGARMAN LAW FIRM, LLP, SYRACUSE (STEPHEN A. DAVOLI OF COUNSEL), FOR DEFENDANT–RESPONDENT TANK INDUSTRY CONSULTANTS, INC. GOLDBERG SEGALLA LLP, SYRACUSE (NICHOLAS PONTZER OF COUNSEL), FOR DEFENDANT–RESPONDENT WORLDWIDE INDUSTRIES CORP. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (CHRISTOPHER DEFRANCESCO OF COUNSEL), FOR THIRD–PARTY DEFENDANT–RESPONDENT.

MEMORANDUM AND ORDER

Now, upon reading and filing the stipulation discontinuing the action against defendant Tank Industry Consultants, Inc., signed by the attorneys for the parties on June 22, 2015, and filed in the Onondaga County Clerk's Office on July 10, 2015,

It is hereby ORDERED that said appeal insofar as it concerns defendant Tank Industry Consultants, Inc. is unanimously dismissed upon stipulation and the order is affirmed without costs.

Memorandum:  Plaintiff commenced this common-law negligence and Labor Law action seeking damages for injuries he sustained when he fell from a hoist ladder.  Plaintiff moved pursuant to CPLR 1010 to sever the third-party indemnification action from the main action, and third-party defendant, CDK Industries, Inc. (CDK), moved to strike the note of issue.  Supreme Court denied plaintiff's severance motion without prejudice, and granted the motion to strike.  We affirm.

Contrary to plaintiff's contention, the court did not abuse its discretion in denying his severance motion where, as here, plaintiff failed to show substantial prejudice (see CPLR 1010;  Quinn v. Broder, 225 A.D.2d 1110, 1110;  see also Nielsen v New York State Dormitory Auth., 84 AD3d 519, 520).  The court also properly granted the motion to strike because, inter alia, the third-party action was commenced after the note of issue was filed in the main action, and CDK had outstanding requests for discovery (see 22 NYCRR 202.21[e] ).

Frances E. Cafarell

Clerk of the Court