Lipari v At Spring, LLC

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Lipari v At Spring, LLC 2012 NY Slip Op 31554(U) June 8, 2012 Supreme Court, New York County Docket Number: 106047/07 Judge: Cynthia S. Kern Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 611312012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK / PRESENT: - NEW YORK COUNTY K E K W PART I 'g Justice MOTION DATE -vMOTION SEQ. NO. MOTION CAL. 0s NO. were read on this motlon to/for The following papers, numbered 1 to Notlce of Motlonl Order to Show Cause - Affldavtta - Exhibits ... Answering Affidavits - Exhibit8 Replying Affldsvits Cross-Motion: Yes 0 No Upon the foregoing papers, it is ordered that thi6 motlon I decided In accordance with thz annexed decision. s Dated: J. S. C. $ NON-FINAL DISPOSITION Check one: FINAL DISPOSITION Check if appropriate: DO NOT POST 0 SUBMIT ORDER/ JUDG. c REFERENCE ] 0 SETTLE ORDER/ JUDG. [* 2] Plaintiff, Index No. 106047/07 -against- DECISION/ORDER AT SPRING, LLC, CJ TAN SPRING, LLC and SHAWMUT WOODWORKING & SUPPLY, INC., d/b/a SHAWMUT DESIGN & CONSTRUCTION and LONGCHAMP SOHO, LLC, FILED Defendants. -----------------------------"---"~--"--~------"-------------*--*-*- X AT SPIUNG, LLC, CJ TAN SPRING, LLC and SHAWMUT WOODWORKING & SUPPLY, INC., d/b/a SHAWMUT DESIGN & CONSTRUCTION, Third-party Plaintiffs, -against- JUN 13 2012 NEW YORK COUNTY CLERK'S OFFICE Third Party Index No. 590774/2007 DECISION/ORDER IMPERIAL WOODWORKING COMPANY, Recitation, as required by CPLR 22 19(a), of the papers considered in the review of this motion for : Papers Notice of Motion and Affidavits Annexed .................................... Notice of Cross Motioii and Answering Affidavits ....................... Affirmations in Opposition to the Cross-Motion.. ........................ Replying Affidavits.. .................................................................... Exhibits.,.................................................................................... Numbered 1 2,3 4 [* 3] Plaintiff Joseph Lipari commenced this action to recover for injuries he allegedly sustained when he tripped and fell in the course of his employment. He brought claims pursuant to Labor Law ยงยง240(I), 24 1(6),and 200 and common-law negligence claims. Defendants and third-party plaintiffs AT Spring, LLC ( AT ), CJ Tan Spring, LLC ( T J ) , Longchamp Soho, LLC ( Longchamp ) and Shawmut Woodworking & Supply, Inc. ( Shawmut ) commenced the third-party action against Imperial Woodworking Company ( Imperial ) seeking indemnification. By order of the Appellate Division, First Department, plaintiff was granted summary judgment as to liability on his Labor Law $240( 1) claim. Plaintiffs other claims remain. Plaintiff now moves to sever his remaining claims and moves for separate trials, with separate juries, of what remains of the main action and of the third-party action. For the reasons set forth more fully below, plaintiffs motion is denied. The relevant facts are as follows. Plaintiff, a carpenter, fell from a height while working at a construction site. Defendants AT and CJ owned the building where the accident took place. Defendant Longchamp leased the building. Longchamp hired Shawmut as the construction manager and general contractor. Shawmut subcontracted with Imperial to provide architectural woodwork for the construction project, which in turn subcontracted with Wood Pro Installers ( Wood Pro ) for installation of the woodwork. Plaintiff was an employee of Wood Pro. As an initial matter, the court declines to sever plaintiffs Labor Law $$241(6) and 200 claims and common-law indemnification claim. Those clainis are all based on the same facts as plaintiffs $240(1) claim and plaintiff cannot leave thein unresolved. He either has to pursue them, in which case they will be tried, or he niay discontinue them. The court also declines to order separate trials, with one trial of the maill action and 2 [* 4] another trial for the third-party action. Whether to order separate trials is a matter within the court s discretion and the Court of Appeals has directed that this discretion should be exercised sparingly. Shanley v Caflanan Inds., 54 N.Y.2d 52, 57 (1981). It is well-settled that [ilt is preferable to try related actions together, in order to avoid a waste ofjudicial resources and the risk of inconsistent verdicts. Williams v Properly Servs., 6 A.D.3d 255 (1 Dept 2004). Where a main action and a third-party action involve common factual and legal issues they should be tried together. Neck1e.r v W Credif,fnc., 23 A.D.3d 191 ( I Dept 2005). Courts may grant 5 separate trials if the party seeking them demonstrates prejudice to a substantial right in the absence of severance. Williams, 6 A.D.3d 255. In the instant case, the main action and the third party action involve common factual and legal issues nnd plaintiff fails to demonstrate prejudice to a substantial right in the absence of severance. Plaintiff argues that, regarding the indemnification issue, Shawmut will try to show that plaintiff was negligent, While that may be true, that prejudice does not arise to the level of prejudice to a substantial right in that any prejudice stemming therefrom can be cured by instructions to the jury. The cases plaintiff cites in support of separate trials are inapposite. Brown v Prlracca & Sun, 124 A.D.2d 772 (2nd Dept) did not involve the issue of separate trials or severance at all. In Kelly v Yannottt, 4 N.Y.3d 603 (1958), which involved a third-party defendant insurer, the court found that the main action and third-party action should be severed. Here, insurance coverage will not be an issue at trial. Finally, Fbx v Tioga Constr. Co., 1 Misc.3d 409(A) (Sup. Ct, Oneida & Albany Cty, 2004) is not controlling authority. Accordingly, plaintiffs motion to sever his Labor Law 6524 l(6) and 200 claims and his [* 5] common-law negligence claim and for separate trials of the main action and the third-party action is denied. This constitutes the decision and order of the court. Dated: 6 Ig1 Enter: tY-- J.S.C. 4

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