Louise Jambrone et al., Respondents, v. A.J.C. Food Market Corp. et al., Appellants. (And a Third-Party Action.)

Louise Jambrone et al., Respondents, v A.J.C. Food Market Corp. et al., Appellants. (And a Third-Party Action.) [MAJORITY] Order, Supreme Court, Bronx County (Bertram Katz, J.), entered December 18, 1989, which, sua sponte, severed the third-party action, unanimously modified, on the law and on the facts and in the exercise of discretion, to vacate the severance of the third-party action on condition that the matter proceed to an immediate trial and, except as thus modified, affirmed without costs or disbursements; in the event the condition is not complied with, the order is affirmed without costs or disbursements. On the defendant and third-party plaintiff’s motion to strike the note of issue on the ground that all pretrial discovery had not been completed, the court, sua sponte, severed the third-party action from the main action. In our view, this was an inappropriate response to the motion since, contrary to the statement of readiness, the main action was not ready for trial. Moreover, there was no significant delay in the commencement of the third-party action that would warrant a severance. (Cf., Vita Food. Prods. v Epstein & Sons, 52 AD2d 522.) Since, however, the case involves an 87-year-old plaintiff, the matter should proceed to trial as expeditiously as possible and we therefore condition our vacatur of the severance accordingly. We note that we were advised on oral argument that discovery in the third-party action has now been completed and that the trial of the main action is scheduled for March 13, 1990. Concur—Sullivan, J. P., Ross, Ellerin, Wallach and Smith, JJ.