Miller v Jetblue Airways Corp.

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[*1] Miller v Jetblue Airways Corp. 2009 NY Slip Op 51780(U) [24 Misc 3d 1237(A)] Decided on August 17, 2009 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 17, 2009
Supreme Court, New York County

Deborah Miller, Plaintiff,

against

Jetblue Airways Corporation and Turner Construction Corp., Defendants.



102398/2009



For Plaintiff:

David H. Mayer, Esq.

Sacks & Sacks, LLP

150 Broadway

New York, NY 10038

(212) 964-5500

For Defendants

Christopher H. Sommer, Esq.

199 Water St

New York, NY 10038

(212) 232-1300

Michael D. Stallman, J.



In this action, plaintiff asserts derivative claims arising out of her husband's accident, which allegedly occurred on July 11, 2006. She and her husband, Christopher Miller, commenced an action against these defendants in Supreme Court, New York County, on August 23, 2006, Miller v Jetblue Airways, Index No. 111750/2006, assigned to Justice Jane Solomon. By stipulation dated May 11, 2007, the parties in the prior action stipulated to discontinue Deborah Miller's claim for loss of services without prejudice. Sommer Affirm., Ex E. By order dated August 5, 2008, Justice Solomon denied plaintiffs' motion to restore Deborah Miller's consortium claim, stating, "There is no explanation from the co-plaintiff who withdrew her claim as to why she did so and now has changed her mind on the eve of trial." The remainder of the action ultimately settled for $12 million in October 2008, and Christopher Miller executed a release. Id., Exs C, D. Plaintiff commenced this action on February 20, 2009.

Defendants contend that the action must be dismissed because derivative claims must be joined with the underlying claim which gives rise to the derivative claims, citing Buckley v [*2]National Freight, 90 NY2d 210 (1997). Plaintiff argues that Buckley is inapposite because the stipulation of discontinuance was "without prejudice" and without objection by defendants in the prior action, and because Justice Solomon denied plaintiffs' application to restore Deborah Miller's loss of consortium claim.

In Buckley, a husband, whose wife had been seriously injured in a motor vehicle accident, brought a loss of consortium action after the wife's underlying action was settled and she had issued a general release. Quoting Millington v Southeastern Elevator Company, (22 NY 498 [1968]), the Court of Appeals affirmed dismissal of the action: "Where there is a cause of action brought by the injured husband pending, the wife's consortium action, if not time-barred, should be joined with her husband's claim. Where, however, the husband's cause of action has been terminated either by judgment, settlement or otherwise, that should operate to bar the wife's cause of action for consortium."

Buckley v National Freight, Inc., 90 NY2d 210, 214 (1997). The Court of Appeals saw no reason to depart from the rule outlined in Millington. Id. at 216.

Plaintiff argues that Buckley should be read narrowly, citing Gaffey v Nelson (309 AD2d 1220 [4th Dept 2003]). In Gaffey, the Appellate Division, Fourth Department affirmed denial of a motion to dismiss for the reasons of the motion court, adding "only that the evidence submitted on the motion does not conclusively establish that [Buckley] is applicable under the facts of this case and bars plaintiff's action." Id. at 1220. Nothing in Gaffey indicates that Buckley should be read narrowly. As defendants point out, the appellate court did not discuss the facts of Gaffey in the decision, which supports the conclusion that Gaffey, not Buckley, should be limited to its facts.

Here, Deborah Miller's loss of consortium claim could have been joined, and was, in fact, joined with her husband's claim for personal injuries. Like the plaintiff in Buckley, Christopher Miller executed a release, which therefore bars Deborah Miller from pursuing her derivative claims. Buckley, 90 NY2d at 212.

Furthermore, the policy reasons articulated in Buckley support dismissal of this action. "As we recognized in Millington, the joint trial of the two causes of action minimizes the risk of overlapping recovery. The requirement of joinder is consistent with the view that a loss of consortium claim represents an injury to the marital relationship; thus, if both the impaired spouse and the deprived spouse intend to assert claims, those claims (particularly for loss of consortium) should be asserted in the same action whenever possible, so that the trial court can accurately assess the extent of any injury. As suggested by the Appellate Division, this approach also conserves judicial resources and tends to discourage sharp litigation practices."

Buckley, 90 NY2d at 215 -216. As Justice Solomon noted, Deborah Miller sought to restore her loss of consortium claim on the eve of trial of her husband's action without any explanation as to why she had discontinued her claim in the first instance, and why she then changed her mind. [*3]

Counsel now claims that her voluntary discontinuance at the time was due to "multiple reasons, including marital troubles with her husband and the extraordinary duties involved in caring for 5 young children and a severely disabled husband." Mayer Opp. Affirm. ¶ 4. And yet, Deborah Miller herself did not submit an affidavit here. Neither does counsel explain why such reasons were not offered in the motion before Justice Solomon. Insofar as plaintiff urges the Court to find an exception to Buckley because she alleges that she tried to restore her action in good faith, she essentially argues that she should be permitted to commence a separate action due to impediments of her own making. Notably, it appears that plaintiff did not appeal Justice Solomon's ruling denying her motion.

Finally, the parties' stipulation of discontinuance did not overrule the rule in Buckley. The parties did not agree that Deborah Miller could commence a separate action for her claim. Thus, the stipulation of discontinuance of Deborah Miller's loss of consortium claim without prejudice could have, at best, allowed her to re-assert her derivative claims only in the action before Justice Solomon, where her husband's personal injury claims were then being litigated.

Accordingly, defendants' motion to dismiss is granted.

Dated:8/17/09/s/

New York, New YorkJ.S.C.

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