In a negligence action to recover damages for personal injuries, etc., the third-party defendant appeals from an order of the Supreme Court, Kings County, dated May 6, 1975, which denied its motion for a severance of the third-party action. Order reversed, with $50 costs and disbursements, and motion granted. Under the facts in this case, a trial of all causes of action before the same jury would subject the third-party defendant to some prejudice (Kelly v Yannotti, 4 N.Y.2d 603; De Luca v Schlesinger, 39 A.D.2d 566).
Hopkins, Acting P.J., Cohalan, Christ and Brennan, JJ., concur; Shapiro, J., dissents and votes to affirm the order appealed from, with the following memorandum:
The two cases relied upon in the memorandum of the majority herein (Kelly v Yannotti, 4 N.Y.2d 603; De Luca v Schlesinger, 39 A.D.2d 566) are not in point. In the instant case, issue was joined in August, 1972 and the third-party complaint was served in December, 1972. A note of issue was filed in March, 1974. Appellant waited until the eve of trial before proceeding, by notice of motion dated January 30, 1975, to move for a severance. Under the circumstances, I do not believe that Trial Term abused its discretion in denying the motion.