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Charet v. Man-Dell Food Stores, Inc.

208 A.D.2d 489 Court N.Y. App. Div. Decision date 1994-10-03 English

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p. 489
Elsie Charet et al., Appellants, v Man-Dell Food Stores, Inc., et al., Respondents. (And a Third-Party Action.)
[616 NYS2d 1017]

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (Milano, J.), dated April 29, 1993, which denied their motion to sever the third party action and to restore the main action to the trial calendar with a special preference.

Ordered that the order is affirmed, with costs.

Given the plaintiffs’ own delay in prosecuting the main action, we find that the Supreme Court did not improvidently exercise its discretion in denying the plaintiffs’ motion for a severance of the third party action on the grounds that delay in its prosecution would prejudice the plaintiffs (see, CPLR 1010). In addition, since the Supreme Court has indicated that it intends to insure that prosecution of the third party action proceeds expeditiously and that when discovery is complete the plaintiffs will be given a preference under CPLR 3403 (a) (4), we find no basis to grant the other relief requested by the plaintiffs. Thompson, J. P., Miller, O’Brien, Santucci and Joy, JJ., concur.