Andreasik v. 242 Associates , 51 A.D.2d 717 ( 1976 )

In a negligence action to recover damages for personal injuries, (1) defendant third-party plaintiff, 242 Associates, appeals from three orders of the Supreme Court, Queens County, as follows: (a) an order entered December 3, 1974 which (i) granted a motion for reargument and (ii) severed the third-party action from the main action, (b) an order dated May 2, 1975 which, inter alia, directed that the main action proceed to trial without any reference to be made therein to the third-party actions and (c) so much of an order dated June 26, 1975 as denied its motion to vacate the order entered December 3, 1974 and (2) third-party defendant Educational Foundation for the Fashion Industries also appeals from the order dated May 2, 1975. Appeal from the order of June 26, 1975 dismissed as academic, without costs or disbursements, in the light of our review of the order entered December 3, 1974. Order entered December 3, 1974 affirmed, without costs or disbursements. In our opinion, due to the nature and complexity of the issues in the third-party action, the severance of that action was proper. Order dated May 2, 1975 modified, by adding to the fourth decretal paragraph thereof, after the words "third-party defendants”, the following: "or to the extent of any amount stipulated by any such release, or in the amount of the consideration paid for such release, or in the amount of such third-party defendant’s equitable share of the damages under article 14 of the CPLR, whichever is greatest”. As so modified, order affirmed, without costs or disbursements (see General Obligations Law, § 15-108, subd [a]). An apportionment of liability pursuant to Dole v Dow Chem. Co. (30 NY2d 143) shall be made at the trial of the main action. The trial court, in its discretion, shall determine the manner and order of the placement of that issue before the jury. Martuscello, Acting P. J., Cohalan, Margett, Damiani and Rabin, JJ., concur.