Erbach Finance Corp. v. Royal Bank of Canada

Apr 7, 1994
Versions:203 A.D.2d 80
610 N.Y.S.2d 20
1994 N.Y. App. Div. LEXIS 3607

—Order, Supreme Court, New York County (Myriam J. Altman, J.), entered November 30, 1993, which, inter alia, denied third-party defendant’s motion pursuant to CPLR 3211 (a) and 1010 to dismiss a portion of the second cause of action of the third-party complaint and the third cause of action of the third-party complaint and granted leave to replead the sixth cause of action, unanimously affirmed.

Order of the same court and Justice, entered December 6, 1993, which denied third-party defendant’s motion to disqualify third-party plaintiffs’ counsel, unanimously affirmed, both with one bill of costs.

The IAS Court properly determined that the main action and the third-party action are sufficiently related to allow for impleader under CPLR 1007 (see, Cohen Agency v Perlman Agency, 51 NY2d 358, 365). Additionally, the IAS Court did not abuse its discretion in refusing to sever the third-party complaint under CPLR 1010. Plaintiff in the main action has not asserted any prejudice by reason of the delay necessary to complete disclosure in the third-party action. Moreover, the claims in the main action and third-party action are so intertwined that one trial is both appropriate and judicially efficient.

Finally, third-party defendant has failed to sustain its burden to demonstrate that third-party plaintiffs’ counsel should be disqualified (see, S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437). The prior representation by a member of the firm was not to third-party defendant but rather to the syndicate generally. Third-party defendant’s confidences are not implicated and thus there exists no basis for disqualification.

We have considered third-party defendant’s other contentions and find them meritless. Concur — Carro, J. P., Wallach, Asch, Nardelli and Williams, JJ.