Ali v 500 Fifth Ave., Inc.

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Ali v 500 Fifth Ave., Inc. 2012 NY Slip Op 33968(U) July 2, 2012 Supreme Court, New York County Docket Number: IndexNo. 105147/09 Judge: Louis B. York Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK-NEW YORK COUNTY PRESENT: Hon. LOUIS B. YORK PART 2 Justice --M·---~-------~------- ....-------------~-------·-•••••••••••••••••••:X. ENRIQUE ALI, Plaintiff, ..against500 FIFI'H AVENUE, INC., 1472 BROADWAY, INC., QNNC ELECTRICAL CONTRACTING CORP., DORO.. WIDE ELECTRICAL CONTRACTORS, INC., H&L ELECTRIC CORP., JACOBY ELECTRIC SERVICE CORP., WILLIAM'S REAL ESTATE USA, INC., JAM ELECTRIC CORP., . Defendants, IndexNo. 105147109 Motion Date 03/07/12 Motion Seq. No. ~ Motion Cal. No. _ ------~-------------------------·-------~----------------------------x 500 FIFTH AVENUE, INC., 1472 BROADWAY, INC., and WILLIAM'S REAL ESTATE USA, INC., Third-Party Plaintiffs, -againstpAL ENVIllONMENTAL SAFETY CORP., Third-Party Defendant, 500 FIFTH AVENUE, INC., 1472 BROADWAY, INC., and WILLIAM'S REAL ESTATE USA, INC., Second Third-Party Plaintiffs, -againstPREMIER ELECTRIC, · Second Third-Party Defendant. ••••----......·---·----••-•••••••--••••••-•••••••--•••••w••--•--••••••-•1( The following papers, numbered I to were read on this motion to Vacate Note oflssue/Readiness I / PAPBRS NUMBERED Notice ofMotion/ Order to Show Cause -Affidavits-Exhibits -- Answering Affidavits-Exhibits _ _ _ _ _ _ _ __ Replying Affidavits _ _ _ _ _ _ _ _ _ _ __ Cross-Motion: [ ] Yes [ 1No I_ _ [* 2] Ali v 500 Fifth Avenue Index No. 105147/09 -2- Motion sequence numbers 005, 006, 007, and 008, are consolidated for disposition. In motion sequence numoer 006, third-party defendant Pal Environmental Safety Corp., moves, to vacate the note of issue. In sequence number 008, defendants/third-party plaintiffs 500 Fifth Avenue Inc., 1472 Broadway Inc., and Williams Real Estate, Inc., s/h/a Williams Real Estate USA, Inc., also move to vacate the note of issue. The first RJI in this matter was filed on October 26, 2009, a preliminary conference was held on April 7, 2010, and compliance and status conferences were held on July 14, 2010, October 6, 2010, January 19, 2011, and May 11, 2011. The note of issue was tiled on June 23, 2011, over one year ago. Plaintiff affirms that they have provided the outstanding discovery which they owed defendants. Therefore, because the period for discovery ended over one year ago, it is ORDERED that Pal Environmental Safety Corp. 's motion to vacate the note of issue is denied (sequence 006); and it is further ORDERED that defendants/third-party plaintiffs 500 Fifth Avenue Inc., 1472 Broadway Inc., and Williams Real Estate, Inc., s/h/a Williams Real Estate USA, Jr{\~ Inc.(sequence 008)1is denied. I I In motion sequence 007, defendants/third..party plaintiffs 500 Fifth Avenue Inc., 1472 Broadway Inc., and Williams Real Estate, Inc., s/h/a Williams Real Estate USA, Inc., [* 3] I Ali v 500 Fifth Avenue Index No. 105147/09 -3- move for leave to commence a second third-party action against Premier Electric. In motion sequence 005, Premier Elec'tric moves, pursuant to CPLR 1010 and 603, to sever the second third-party action. According to the April 7, 2010 preliminary conference order, the impleader deadline was September 7, 2010. This deadline was clearly missed by defendants/third-party pJaintiffs as the motion to commence a second third-party action was just recently submitted. Defendants/third-party plaintiffs maintain that Premier Electric's involvement in the case was made known following a deposition of another party. Although the note I of issue was filed over a year ago, the introduction of a second third-party action requires substantial documentary discovery, as well as additional depositions. While there are common issues in the main and second third-party action, any prejudice which would be caused to the defendants/third-party plaintiffs by a severance, would be less than the prejudice which would be caused to plaintiff for the further delay of this matter. See, Garcia v Gesl1er Realty Corp., 280 AD2d 440, 440..441(1st Dept 2001). Therefore, it is ORDERED that defendants/third-party plaintiffs 500 Fifth Av~nue Inc., 1472 Broadway Inc., and Williams Real Estate, Inc., s/h/a Williams Real Estate USA, Inc's I motion to commenc~ the second third-party action against PremieriElectric is granted · (sequence 007). It is further [* 4] . ' .' Index No.105147/09 Ali v SQQ Fifth Avenue ORDERED that because substantial discovery is needed for the second-third party action, and because this case greatly exceeds the court systems standards and goals as the RJI was filed in 2009, the second third-party action is severed (sequence 005). Any discovery served in the first and second action should be provided to Premier Electric. Third-party plaintiff must obtain a new index number for the severed action and the parties may use their third-party pleadings in the severed action. Dated: 1 f~ 10- Enter: _... Check one: 0 FINAL DISPOSITION Check if appropriate: 0 %NON-FIN4L DISPOSITION DO NOT POST 0 ~EFERENCE

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