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Lorne v. 50 Madison Avenue LLC

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 25, 2010

SIMON LORNE, ET AL., PLAINTIFFS-RESPONDENTS,
v.
50 MADISON AVENUE LLC, ET AL., DEFENDANTS-APPELLANTS, GOLDSTEIN PROPERTIES LLC, ET AL., DEFENDANTS. 50 MADISON AVENUE LLC, ET AL., THIRD-PARTY PLAINTIFFS-APPELLANTS, RCDOLNER LLC, THIRD-PARTY DEFENDANT-APPELLANT, COMMODORE CONSTRUCTION CORP., THIRD-PARTY DEFENDANT-RESPONDENT, G.M. CROCETTI, INC., ET AL., THIRD-PARTY DEFENDANTS.
RCDOLNER LLC, FOURTH-PARTY PLAINTIFF-APPELLANT, OLYMPIC PLUMBING & HEATING CORP., ET AL., FOURTH-PARTY DEFENDANTS-RESPONDENTS, WHITESTONE CONSTRUCTION, ET AL., FOURTH-PARTY DEFENDANTS. [AND A THIRD THIRD-PARTY ACTION]

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered July 6, 2009, which granted plaintiffs' motion as well as motions and a cross motion by certain third- and fourth-party defendants for an order severing the third- and fourth-party actions from the main action, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Saxe, McGuire, Moskowitz, Freedman, JJ.

602769/07, 590141/09, 590265/09 & 590355/09

Plaintiff purchasers alleged, inter alia, breach of a condominium purchase/sale agreement and its attendant warranties. The third- and fourth-party actions involved sponsor/general contractor claims against contractors and subcontractors for liability/indemnification arising from allegedly defective workmanship and design. Severance of claims (CPLR 603), was a proper exercise of judicial discretion here, since the sponsor and property manager essentially admitted the existence of alleged material defects in the flooring of plaintiffs' unit. We note that a substantial period of delay was occasioned by the meritless motion to dismiss made by defendants 50 Madison and Samson. Plaintiffs would be prejudiced by burdensome discovery in connection with the 13 additional parties representing the allegedly negligent contractors and subcontractors. While the claims of defective workmanship and design in the main action are shared in the third- and fourth-party actions, there appears to be little likelihood of inconsistent judgments where the sponsor and property manager have effectively acknowledged that these defects were responsible for plaintiffs' displacement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100525

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