Henderson v. Wein Hardware Co.

Order entered October 15, 1975, in the Supreme Court, New York County, unanimously affirmed, with $40 costs and disbursements to third-party defendant-respondent. The order appealed from severed the third-party indemnity action based on medical malpractice from the main action brought against defendants-appellants (appellants) to recover damages for personal injuries suffered by reason of the alleged negligence of appellants. Appellants urge that the court erred in severing the third-party action and referring it to a medical malpractice panel by reason of the court’s stated belief that it was mandated to do so, and that the main action and the third-party action should be tried together. While severance was not mandated, the court did not rest its action solely on that basis. The court expressed the desire to give plaintiff an early trial since a special preference had been given because of *697age, and also the desire of the court to simplify issues for a jury. The action taken was a proper exercise of judicial discretion. The assertion of laches on the part of the third-party defendant as a possible barrier to severance has been examined and found to be without merit. Concur—Stevens, P. J., Kupferman, Lupiano, Birns and Lane, JJ.