DeBell v. Cousins, Inc. , 755 N.Y.S.2d 355 ( 2003 )

Appeal from an order of Supreme Court, Monroe County (Bergin, J.), entered November 1, 2001, which, inter alia, denied that part of the motion of plaintiff in action No. 1 for leave to serve a cross claim against plaintiff in action No. 2.

Now, upon reading and filing the stipulation discontinuing the appeal insofar as it concerns defendants Gregory Stahl and Katrina Martinez in action No. 1 signed by the attorneys for the parties and filed on December 24, 2002,

It is hereby ordered that the appeal from said order insofar as it concerns defendants Gregory Stahl and Katrina Martinez be and the same hereby is unanimously dismissed upon stipulation and the order is modified on the law by granting that part of the motion seeking leave to serve a cross claim upon condition that plaintiff in action No. 1 shall serve the proposed cross claim within 20 days of service of a copy of the order of this Court with notice of entry and as modified the order is affirmed without costs.

Memorandum: We agree with Roger J. DeBell, the plaintiff in action No. 1, that Supreme Court abused its discretion in denying that part of his motion seeking leave to serve a cross claim against Josephine DeBell, the plaintiff in action No. 2. The two actions are in the early stages of discovery, plaintiff established a valid basis for the cross claim and, indeed, the motion was unopposed and thus no prejudice was shown (see generally CPLR 3025 [b]; Hogarth v City of Syracuse [appeal No. 1], 238 AD2d 887, lv dismissed 90 NY2d 935, lv denied 93 NY2d 812; Marine Midland Bank v Stanton, 147 Misc 2d 426, 429-430). Present — Wisner, J.P., Scudder, Burns and Hayes, JJ.