Severed: CPLR 603 and 1010

CPLR § 603 Severance and separate trials

CPLR R. 1010 Dismissal or separate trial of third-party complaint

Moy v St. Vincent's Hosp. & Med. Ctr. of N.Y., 2012 NY Slip Op 00941 (2nd Dept., 2012)

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants St. Vincent's Hospital and Medical Center of New York (hereinafter the hospital) and Michael G. Wayne, a physician. The hospital subsequently commenced chapter 11 bankruptcy proceedings, resulting in an automatic stay pursuant to 11 USC 362(a) of the continuation of any action or proceeding against the hospital.

"It has been generally held that the balance of the equities lies with plaintiffs when one defendant has received an automatic stay pursuant to 11 USC § 362(a) . . . and codefendants request a stay of the entire action'" (Rosenbaum v Dane & Murphy, 189 AD2d 760, 761, quoting Lottes v Slater, 114 AD2d 580, 581; see Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014). Here, as the prejudice to the plaintiff in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience to the defendants, the Supreme Court improvidently exercised its discretion in denying the plaintiff's motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital (see Weber v Baccarat, Inc., 70 AD3d 487, 488; Kharmah v [*2]Metropolitan Chiropractic Ctr., 288 AD2d 94; Golden v Moscowitz, 194 AD2d 385, 386; Rosenbaum v Dane & Murphy, 189 AD2d at 761). However, as Wayne correctly contends, equity requires that the defendants have the benefit of their rights under CPLR article 16, such that if their culpability is 50% or less, their exposure for economic damages should be limited proportionately to their share of fault (see CPLR 1601[1]; Karmah v Metropolitan Chiropractic Ctr., 288 AD2d at 94-95).

Accordingly, the order appealed from must be reversed, and the plaintiff's motion pursuant to CPLR 603 to sever the causes of action asserted against Wayne from the causes of action asserted against the hospital is granted, subject to the preservation of the defendants' equitable share allocation rights pursuant to CPLR article 16.

Whippoorwill Hills Homeowners Assn., Inc. v Toll at Whippoorwill, L.P., 2012 NY Slip Op 00511 (2nd Dept., 2012)

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in directing the severance of the third-party actions at issue from the main action. Severance will avoid undue delay in the main action, which was commenced more than four years ago and has been certified ready for trial, and will avoid prejudice to the third-party defendants, who have not had an adequate opportunity to complete discovery (see CPLR 1010; Meczkowski v E.W. Howell Co., Inc., 63 AD3d 803, 804; Abreo v Baez, 29 AD3d 833, 834; Wassel v Niagara Mohawk Power Corp., 307 AD2d 752; Singh v City of New York, 294 AD2d 422, 423).

CPLR § 1015; CPLR § 1021; CPLR § 603; CPLR R. 1010

CPLR § 1015 Substitution upon death

CPLR § 1021 Substitution procedure; dismissal for failure to substitute; presentation of appeal

CPLR § 603 Severance and separate trials

CPLR R. 1010 Dismissal or separate trial of third-party complaint

Meczkowski v E.W. Howell Co., Inc., 2009 NY Slip Op 04874 (App. Div., 2nd, 2009)

Under the circumstances of this case, the Supreme Court providently
exercised its discretion in granting that branch of the plaintiff's
motion which was for leave to substitute Marek Meczkowski, as
administrator of the estate of Bogumil Meczkowski, in place of Bogumil
Meczkowski pursuant to CPLR 1015 and CPLR 1021 (see Roesenfeld v Hotel Corp. of Am., 20 NY2d 25; Encalada v City of New York, 280 AD2d 578; Egrini v Brookhaven Mem. Hosp., 133
AD2d 610). In addition, the Supreme Court providently exercised its
discretion in granting that branch of the plaintiff's motion which was
to sever the third-party action to avoid further delay of this action,
which was commenced more than nine years ago (see CPLR 603, 1010
; see also Singh v City of New York, 294 AD2d 422; Garcia v Gesher Realty Corp., 280 AD2d 440; Ambriano v Bowman, 245 AD2d 404; [*2]Klein v City of Long Beach, 154 AD2d 346).

The bold is mine.