Lieberman v Guerra

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Lieberman v Guerra 2011 NY Slip Op 33394(U) December 13, 2011 Sup Ct, Nassau County Docket Number: 6042/10 Judge: Denise L. Sher 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. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Cour Justice TRiAL/IS PART 32 NASSAU COUNTY CAROLEE LIEBERMAN and SEYMOUR LIEBERM, Index No. : 6042/10 Motion Seq. No. : 01 Motion Date: 10/12/11 Plaintiffs, - against - LINDA 1. GUERR, Defendant. LINDA 1. GUERR, Third-Par Plaintiff, - against - TREECO CENTERS LIMITED PARTNERSHIP and TREECO/SPE CTR INC. Third-Par Defendants. The followine papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in S upp ort and Exhibit Affrmation in Op.position and Exhibits Upon the foregoing papers , it is ordered that the motion is decided as follows: Third- par defendants move , pursuat to CPLR 603, for an order granting them s (" Guerra ) Thrd-Par Complait. severance of defendant/third-par plaintiff Linda J. Guerra Plaintiffs submitted an Affrmation in Support of said motion. Defendat/thrd- par plaitiff [* 2] Guerra opposes the motion. This action arses from a motor vehicle accident which occured on December 23, at approximately 5:15 p. 2009, , in the parking lot of the PlainviewIPromenade Shops , in front of the Rite- Aid Store located at 391 South Oyster Bay Road , at or near its intersection with Road in Woodbur, County of Nassau, State of New York. Plaitiffs accident was caused by the negligence of defendant/thrd-par Woodbur have alleged that the plaitiff Guerra. Plaintiffs commenced the action by service of a Sumons and Verified Complaint on or about March 17, 2010. See Third-par Defendants ' Affirmation in Support Exhbit A. On October 7, 2010 , a Preliminar Conference was held at which a Preliminar was issued. See Conference Order Third-par Defendants ' Affrmation in Support Exhbit B. Pursuant to the Preliminar Conference Order , all discovery was to be completed by May 30, 2011. On Febru See , 2011 , a Certification Conference was held and a Certification Order was issued. par Defendants ' Thd- Affirmation in Support Exhibit C. On Augut 10, 2011 , defendat/thrd-par though plaintiff Guerra instituted the withn thrd-par action agaist the thd-par defendants the service of a Third- Par Sumons and Thd-Par Complaint. See Thrd-par Defendats plaintiff Affirmation in Support Exhibit D. In the Third- Par Complaint, defendant/thd-par Guerra asserts that third-par defendants owned and/or controlled the subject parking lot premises and are guilty of culpable conduct, specifically that they failed to maintan the parking lot in a reasonably safe condition in that they failed to properly clear, plow and sand and/or salt the premises and parking lot. Third-par defendants joined issue on or about August 22, 2011. See Third-par Defendants ' Afrmation in Support Exhbit E. Third-par defendants argue that, if the thd-par action is not severed , then either they [* 3] or plaintiff wil " sustain manifest prejudice. " Thrd-par to severance since the discovery in the thrd- defendants submit that they are entitled par action is in its infancy while the mai action is tral currently on the trial calendar. Third-par defendants contend that if they are made to go to at this juncture there is not a sufficient period of time withn which it could possibly conduct all necessar discovery such as to become "trial ready. " Thrd- par defendants fuer argue that it is settled law that severance of a third- par action is an appropriate remedy to avoid "prejudice (to) the substantial rights of any par. Y.S.2d 915 (2d Dept. 2002) See Singh v. City of New York 294 A.D. 2d 422, 741 CPLR ~ 1010 and CPLR ~ 603. citing Plaintiffs filed an Affirmation in Support of thrd- par defendants ' motion to sever. Plaintiffs adopted the arguments set fort by third- par defendants in said motion. Plaitiffs submit that "the thrd-par complaint is untimely, there is no reason or basis for the delay in bringing the action and not severing the action will prejudice the plaintiff as the case is ready for trial and the plaintiff is ready, willng and wishes to proceed fortwith... Moreover, defendant has offered no basis or reason for bringing the thrd-par action in the eve of tral. Why? Because there is basis. In opposition to third- par defendants ' motion , defendant/thrd-par plaintiff Guerra argues that , in the interest of justice , said motion must be denied in all respects. She submits that there are genuine issues of fact as to the negligence of all of the paries, including, but not limited to whether the condition and maintenance of the parking lot was a substatial factor in causing the accident. Therefore should hear all of the evidence an (i)n order to eliminate the possibilty of inconsistent verdicts, one jur (sic) apportion liabilty. Defendant/thrd-par plaintiff Guerra s counsel contends tht " (t)he thrd par [* 4] Defendant interposed an Answer on August 22 , 2011. With said Answer the Third Par Defendant requested , from Defendants/third Par Plaintiffs, ' a copy of your entire medical file for plaintiffs , as well as copies of all pleadings and discovery exchanged to date. ' With 2 weeks of said request your affirmant forwarded to counsel for the Thrd Par Defendats all discovery in our possession, including, but not limited to medical reports, photos , examnations before tral, independent medical examinations. To date , outstanding from the Third par your affrmant is not aware of any demands defendants. To avoid waste of judicial resources and risk inconsistent verdicts , it is preferable for related cases to be tred together such as in tort cases where the issue is the respective liabilty the defendant and the thrd- Inn 251 A.D.2d 154 fied a slip and par defendant for the 674 N. S.2d 346 (1 plaintiffs injures. st Dept. 1998). In Rothstein See Rothstein v. v. Mileridge Mileridge Inn plaintiff fall negligence action against a parking lot owner and the owner filed a thrd-par action against the snow and ice removal contractor. The Cour found that the tral cour abused its discretion by severing the third-par action from the main action, as the defendat parking lot owner would be prejudiced. The trer of fact could not properly determine whether the owner had negligently maintained the parking lot without considering whether the contractor usd in removing the snow and ice. See id. In the instat action , defendant/thrd-par due care plaitiff Guerra asserts that third-par defendants owned and/or controlled the subject parking lot premises where the motor vehicle accident with plaintiffs occured and are guilty of culpable conduct specifically that they (third-par defendants) failed to maintain the parking lot in a reasonably safe condition in that they failed to properly clear, plow and sand and/or salt the premises and parking lot. Defendant/thrd- par plaintiff Guerra instituted the thrd-par action on Augst 10, [* 5] par defendants joining issue on August 22, 2011. That has given thrd-par defendants almost four months during which to conduct discovery. Additionally, the intat 2011 , with third- matter is now scheduled for trial on Januar 30, 2012 , providing third-par defendants with even more time. Furhermore , defendant/third- par plaintiff Guerra claims that , two weeks afer thrdpary defendants joined issue , she provided them with " all discovery in our possession, including, but not limited to medical reports , photos , examinations before tral , independent medical examinations. " The case of Singh v. City of New York, supra, cited by thrd-par defendants in support Singh of their motion, differs from the case at bar in that the matter was going to tral issue of damages. Liability was not at issue as it is in the present case. Furermore, in Cusano v. Sankyo Seiki Mfg. Co. , Ltd 184 A. D.2d 489, 584 N. on the sole Cusano by 2d 324 (2d Dept. 1992), also cited by third-par defendants , the impleader of the thrd-par defendant was eight years afer the main action was filed and two years after a stay of discovery was lifted. In the instat the third- action par defendant was added only two months afer discovery was to be completed. The Cour finds that there has been no excessive or inexcusable procrastination in the assertion of prosecution of this instat matter. The Cour additionally finds that there is potential prejudice to defendant/thrd-par plaintiff Guerra if the third- par action is not tred with the main action. Common factu and legal issues are involved and the interests of judicial economy and consistency of verdicts will be served by having a single trial. Y.S. 2d 278 (2d Dept. 2008). See Curreri v. Heritage Prop. Inv. Trust, Inc., 48 A. D.3d 505, 852 [* 6] Accordingly, thrd- par defendants ' motion , pursuat to CPLR ~ 603 , for an order granting them severance of defendant/third- par plaintiffs Third-Par Complaint is hereby DENIED. All paries shall appear for Trial in Nassau County Supreme Cour, Central Jur Par at 100 Supreme Cour Drive , Mineola, New York, on Janua 30, 2012 , at 9:30 a. This constitutes the Decision and Order of ths Cour. Dated: Mineola, New York December 13, 2011 ENTERED DEC 15 2011 NASSAU COUNTY COUNTY CLERK" OFFtCE

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