Garcia v. Gesher Realty Corp.Garcia v. Gesher Realty Corp.
—Ordеr, Supreme Court, Bronx County (Joseph Giamboi, J.), entered on or about April 7, 2000, which, in an action arising оut of the infant plaintiffs alleged ingestion of lead paint while residing in an apartment owned and managed by defendants, insofar as appealed from, denied defendants’ motion to vacаte plaintiffs note of issue, and granted plaintiffs cross motion to sever defendants’ third-party action against the owners of an apartment in which plaintiff resided subsequent to her residence in defendants’ building, unanimously affirmed, without costs.
In August 1998, plaintiff servеd the report of her psychologist, which first revеaled the existence of a lead paint condition in the apartment where she lived after moving out of defendants’ building, and increased lеad levels in her blood after such move. It was not necessary that defendants, in order to avoid a charge of frivolousness (CPLR 8303-a), independently confirm these statements made by plaintiffs own hеalth care professional, before сommencing a third-party action. Defendants wаited to commence the third-party actiоn until November 1999, after the note of issue had beеn filed in October 1999 pursuant to a September 1999 so-ordered stipulation that did not provide for аdditional disclosure to be taken by defendants оr contemplate a third-party action. This dеlay was unnecessary. While plaintiff did not promptly provide defendants with an authorization for Dеpartment of Health (DOH) records concеrning her exposure to lead in third-party defendаnts’ building, the redacted records provided by DOH did identify the managing agent of that building, and a modicum of diligenсe by defendants would have disclosed the identities of third-party defendants themselves. These cirсumstances (see, Miro v Branford House,