Bubul v Port Parties, Ltd.
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Bubul v Port Parties, Ltd. 2011 NY Slip Op 32705(U) September 30, 2011 Supreme Court, New York County Docket Number: 103407/2007 Judge: Paul Wooten 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. NNEDON 1012012011 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY HON. PAUL WOOTEN PART Justice 7 HELEN BUBUL, Plaintiff, 103407l2007 INDEX NO. MOTION DATE -aga Inst- MOTION SEQ. NO. 005 PORT PARTIES, LTD., THE UNCONVENTION CENTER, MERCHANDISE MART PROPERTIES INC., and VORNADO, REALTY TRUST INC., Defendants. The following papers numbered I 3 were read on this motion by defendant to consolidate two New York to County actions and the cross-motion by plaintiff. I PAPERS NUMBERED Notice of Motion/ Order to Show Cause - Affidavits - Exhibit Answering Affidavits - Exhibits (Memo) 1 Replying Affidavits (Reply Memo) Cross-Motion: nYes 0 NO 3 N t w YOHK COUNTY CLERKS OFFICE Defendant Port Parties, Ltd. ("Port Parties") moves to consolidate this action ("action I"), for joint trial, with a New York County action entitled, Port Parties, Lfd. v. Merchandise Mart Properties, Inc., pending in the Supreme Court, New York County under Index No. 113117/2010 ("action 11"). Plaintiff opposes the defendant's motion and cross-moves for a protective order striking the notice for discovery and inspection served by defendant, to sever plaintiff's action against defendant from plaintiff's actions against all other defendants, and to remand the action against defendant to the trial court for an immediate damages inquest. BACKGROUND Plaintiff, who was then 74 years old, allegedly slipped and fell on a puddle of soap and water on a bathroom floor at the Architectural Digest Home Show in New York City in 2004. She commenced this action by the filing of a Summons and Verified Complaint on March 13, Page 1 of 6 [* 2] 2007 against defendants Port Parties, the UnConvention Center ( UC ), Vornado Realty Trust I nc . ( Vornado ) , a nd Merchandise Ma rt Propertie s , Inc , ( I MMP I I). Su bse q ue nt Iy , defe nda nt s UC, Vornado, and MMPl interposed an answer. Port Parties, however, never interposed an answer or made an appearance. Consequently, plaintiff moved, on November 7, 2008, for a default judgment against Port Parties. By an Order and Decision, dated December 2, 2008, plaintiff was granted a default judgment against Port Parties as to liability. On October 8, 2009, Port Parties moved to vacate the default judgment claiming it had not been properly served. A traverse hearing was conducted by Special Referee Sue Anne Hoahng of the Supreme Court, New York County, and in a decision and order dated August 31, 2010, Port Parties motion to vacate the default judgment was denied. In a decision and order dated April 14, 201 1, the First Department affirmed Special Referee Hoahng s order (see Bubul v Port Parties, Lfd., 83 AD3d 517 [ l s t Dept 201 11). On October 6, 2010, Port Parties commenced an action (action 11) against codefendants MMPl and UC seeking a judgment against MMPl for, inter alia, indemnification, contribution, and breach of contract and against UC for common-law indemnification and contribution. Port Parties now moves by order to show cause for consolidation of action I, involving the plaintiff, with action II involving MMPl and UC. Plaintiff opposes defendant s motion and cross-moves for a protective order striking the notice for discovery and inspection served by defendant, to sever plaintiff s action against defendant from plaintiff s actions against all other defendants, and to remand the action against defendant to the trial court for an immediate damages inquest. Co-defendants MMPl and UC submitted affirmations in opposition to Port Parties motion for consolidation, Port Parties contends that the Court should grant consolidation of this action with the action involving MMPl because both actions concern the same factual and legal issues, namely, the responsibility of the respective parties regarding plaintiff s alleged injuries. Port Parties Page 2 of 6 [* 3] asserts that failure to consolidate the actions would result in a waste of judicial resources and the possibility of inconsistent verdicts (reply affirmation in support of motion at 2) Moreover, Port Parties states that the plaintiff will not be prejudiced by consolidation. Plaintiff in opposition argues that there are no common questions of law or fact, and that consolidation would unfairly delay this action. Defendants UC and MMPl similarly assert, among other things, that there are no common questions of law or fact and that the recently commenced action involves different theories of law (see affidavits in opposition to defendants motion to consolidate). DISCUSSION Motion to Consolidate CPLR 5602 (a) gives the trial court discretion to consolidate actions involving common questions of law or fact (Progressive Ins. Co. v. Vasquez, 10 AD3d 518, 519 [Ist Dept 20041). Though there is a preference for consolidation, consolidation would not be proper if the party opposing the motion demonstrates that consolidation will prejudice a substantial right (Progressive, 10 AD3d at 519). Here, the two actions pose different questions of law. While both actions arise out sf the incident that occurred at the Architectural Digest Home Show in New York City in 2004, action I involving plaintiff and Port Parties is based upon negligence, while the action that Port Parties commenced against defendants UC and MMPl is based on indemnification and contribution, to which plaintiff is not involved. In addition, the arguments to be presented by the co-defendants at the trial involving plaintiff differ. Defendants MMPl and UC will seek to argue about the plaintiff s comparative negligence, which Port Parties, a defaulting party, cannot. Moreover, if the Court was to consolidate the actions, the rights of the plaintiff would be prejudiced. Port Parties default and the subsequent traverse hearing delayed the Case for almost an year. Consolidation would further delay resolution of this matter. Accordingly, Port Parties motion to consolidate this action with its action pending against MMPl and UC is denied. Page3of 6 [* 4] Plaintiff s Cross-Motion A Protective Order Striking Port Parties Discovery Demands In her cross-motion, plaintiff seeks a protective order striking defendant s discovery demands. In doing so she contends that defendant as a defaulting party is not entitled to discovery from the plaintiff. Plaintiff asserts that defendant s reliance upon an order of this Court dated October 7, 2010, which stated that all parties to respond to all discovery demands within 25 days is misguided (see reply affirmation in support of motion to consolidate, Exhibit A). Plaintiff contends that this order does not give Port Parties, a defaulting party, the right for de novo discovery demands. Defendant on the other hand, asserts, that it is entitled to a response to its discovery demand served on plaintiff to the extent that it complied with this Court s order. It is well settled in New York, that a defaulting party forfeits his right to discovery as a result of its default in answering a complaint (Minicozzi v Gerbino, 301 AD2d 580, 581 [2d Dept 20031; see Santiago v Siega, 255 Ad2d 307, 307-308 [2d Dept 19981). It is error to permit a defaulting defendant to conduct discovery of the plaintiff in preparation for an appearance at inquest (Yeboah v Gaines Sew. Leasing, 250 AD2d 453, 454 [1 st Dept 19981). Here, Port Parties failed to answer or appear in response to plaintiff s complaint, and as a result a default judgment against Port Parties was granted. As a result of its default, Port Parties is not entitled to discovery from plaintiff at this time. At an inquest of damages, Port Parties will be entitled to only introduce evidence in relation to plaintiffs damages, but cannot introduce evidence tending to defeat plaintiff s cause of action for negligence (see Rokina Opt. Co., Inc. v Camera King, 63 NY2d 728 [1984]; Toure v Harrison, 6 Ad3d 270 [1st Dept 20041). It is error for Port Parties to try to receive de novo discovery at this stage of the action, and this Court s order did not intend to permit Port Parties to do so. Thus, a protective order striking defendants notice and inspection demands shall be granted. 6 . Severance of the action against Port Parties and Inquest for Damages Page4of 6 [* 5] Plaintiff also requests severance of its action against Port Parties from its action against the other defendants. Plaintiff alleges that this would afford her the opportunity for an immediate trial against Port Parties because as a result of plaintiffs default judgment against Port Parties there are no triable issues of liability. Additionally, severance would allow the trial against the remaining defendants to proceed more expeditiously because the arguments about plaintiff s comparative negligence, which Port Parties cannot assert, would cause less confusion if Port Parties was absent. In opposition, Port Parties argues that plaintiff s claims against it should not be severed from her claims against the other defendants because the claims concern common legal and factual issues and severance would be a waste of judicial resources and could possibly result in inconsistent verdicts. Pursuant to CPLR 5 603, in furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others (see CPLR 5 603). Where it will facilitate the speedy, unprejudiced disposition of a case, severance is appropriate in the sound exercise of discretion (Cross v Cross, 112 AD2d 62, 64 [Ist Dept 19851 [internal citation omitted]). The Court s exercise of that discretion will not be disturbed absent [an] abuse of discretion or prejudice to a party s substantial right (Caruana v Padmanabha, 77 AD3d 1307, 1307 [4th Dept 20101 quoting Matter of Green Harbour Homeowners Assn v Town of Lake George Planning Board, 1 AD3d 744, 746 [3d Dept 20031). Severance of the action against Port Parties from the remaining defendants is appropriate here given the different arguments to be interposed by the co-defendants and in light of Port Parties default. Severing the action would grant the plaintiff the convenience to proceed to an immediate trial against Port Parties regarding damages. Additionally, Port Parties would not be prejudiced by severance of the case from the other defendants for an immediate inquest for damages. The claims by Port Parties against its co-defendants in action 11, entitled Port Parties, Ltd. v. Merchandise Mart Properties, Inc. and Page5of 6 [* 6] the Unconvention Center, 1 1 7 ~ . are those for contractual and common-law indemnification and I contribution or breach of contract, to which plaintiff is not directly involved. These issues need not be resolved prior to an inquest for damages between plaintiff and Port Parties. Accordingly, the action against Port Parties should be severed (see CPLR 5603; CPLR $3215 [a]). CONCLUSION Accordingly, and upon the foregoing papers, it is ORDERED that defendant Port Parties, Ltd's motion for consolidation of this action with a New York County action entitled, Port Parties, Ltd. v. Merchandise Mart Properties, Inc. and the Unconvention Center, Inc., pending in the Supreme Court, New York County under Index No. 1131 I712010 is denied; and it is further, ORDERED that plaintiff's cross-motion for a protective order striking defendant's notice for discovery and inspection is granted; and it is further, ORDERED that plaintiff's cross-motion for a severance of its claims against Port Parties from its claims against other defendants is granted and the action is severed as to defendant Port Parties, Ltd., only and is continued as to the remaining defendants; and it is further, ORDERED that the severed portion of this action is referred to a Special Referee for an inquest and assessment of damages; and it is further, ORDERED that within 30 days of the date of this order plaintiff shall serve a copy of this Order with Notice of Entry and Noti lerk of the Motion Support Office who shall set this This constitutes the Decisi Dated: 9/36 -+ 1 L E E r : v Check one: n FIN@b&@&@$& Checkifappropriate: : I 1 c@ N- FI N AL D I SPOSI TI0N 0 DONOTPOST Page 6 of 6 REFERENCE
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