Bee v Henegan Constr. Co., Inc.
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Bee v Henegan Constr. Co., Inc. 2013 NY Slip Op 31928(U) August 14, 2013 Sup Ct, New York County Docket Number: 115417/08 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. [* 1] SCANNED ON 811612013 REME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY HON. PAUL WOOTEN Justice INDE 007 ENEGAN CONSTRUCTION CO., INC., FOREST LECTRIC CORP., EURO-TECH CONSTRUCTION CORP., SKANSKA USA BUILDING, INC., NEW AMSTERDAM DEVELOPMENT CORPORATION, DISNEY WORLDWIDE SERVICE, INC. and DISNEY SERVICES, , Defendants. RAL GLASS AND METAL, INC., Second Third-party Plaintiffs, GENERAL GLASS AND METAL, INC., Second Third-party Defendant. ring Affidavits - Exhibits (Memo) ng Affidavits (Reply Memo) In this action, Joseph Bee (Bee or plaintiff) seeks to recover damages for personal injuries he allegedly sustained as a result of an accident that occurred in the course of his work construction site. Before this Court is a motion by Bee and Theresa Bee (collectively, plaintiffs), brought by Order to Show Cause (OSC) on September 5, Page 1 of 6 [* 2] action. On July 20, 2012, defendantskecond third-party plaintiffs Skanska USA Inc. (Skanska), New Amsterdam Development Corporation (New Amsterdam) and rldwide Services, Inc., also incorrectly sued herein as Disney Core Services pleaded second t6rd-party defendant General Glass and Metal, Inc. (General supports plaintiffs' motion to sever. Defendantskecond third-party kanska, New Amsterdam, and Disney oppose this motion to sever (collectively, BACKGROUND ee was an employee of General Glass when he was injured on May 20, 2008. The nt occurred at 214 West 42nd Street, New York, New York on the New Amsterdam isney Theatre premises (see Verified Bill of Particulars (BP), 7 5). The incident, eels claimed injuries, occurred when he fell from an elevated gang box onto a pile of nd debris on an unspecified floor of the premises. In his complaint, Bee asserts of action for violations of Labor Law ยงยง 200, 240 and 241 (6), Rule 23 of the Industrial cle 1926 of OSHA, and otherwise negligent, careless and reckless behavior on the efendants. Theresa Bee asserts a derivative claim for loss of consortium. he original summons and complaint were filed by the plaintiffs on November 17, 2008 negan, Forest, Euro-Tech, and Skanska. The action against Forest and Euro-Tech was later discontinued. A third-party action was commenced by Henegan against General uant to CPLR 1007 on July 7, 2009, which was voluntarily discontinued on January n November 23, 2010, plaintiffs moved pursuant to CPLR 3025(b) to amend the d complaint to add New Amsterdam and Disney as defendants which was granted urt on February IO, 201 1. On or about July 20, 2012, after discovery of the main action had commenced and of the plaintiffs and Henegan and Skanska had taken place, Skanska, New Page2of 6 [* 3] msterdam, and Disney impleaded General Glass. Defendants/second-third party plaintiffs ssert claims against General Glass for contractual indemnification and breach of agreement to rbcure liability insurance. Now, plaintiffs move to sever the second third-party action. Plaintiffs argue, inter alia, otion to sever should be granted because it is improper, prejudicial as a matter of versible error to try insurance issues in a personal injury trial. Plaintiffs contend that no common issues of law and fact uniting these two actions. Further, plaintiffs argue commencement of the second third-party action will result in undue delay and prejudice if severance is not granted. They argue that Skanska did not object to t h e tion of the first third-party action against General Glass, nor did it choose to join the rty action against General Glass in 2009. Therefore, plaintiffs maintain that defendants neral Glass, and could have started this action at an earlier date. Nonetheless, the encement of this second third-party action will require repetitious party depositions a1 discovery, prejudicing the plaintiffs by further delaying the litigation of the main eneral Glass submits papers in support of plaintiffs' motion to sever and argues that -/ encement of the second third-party action is prejudicial. General Glass contends that of the main action is virtually complete and it should not have to rush discovery f its belated addition as a second third-party defendant. Moreover, General Glass that if the second third-party action is left unsevered, it will request to redepose the d all defendants. kanska, New Amsterdam, and Disney oppose plaintiffs' motion to sever the second y action from the main action. They maintain, interalia, that the inclusion of the d third-party action will benefit, not burden, the plaintiff. Opposing defendants argue that actions involving breach of contract to procure insurance and contractual Page 3 of 6 [* 4] ndemnification claims almost always are included with a main action asserting Labor Law 9s 200, 240 and 241 (6) claims. Moreover, opposing defendants argue that the timing of the second third-party action has not caused undue delay since the main action is still conducting discovery as service of a supplemental BP by plaintiffs, responses, and depositions still remain outstanding. Additionally, the Note of Issue has not yet been filed. Furthermore, they point to ice Michael Stallman s undated preliminary conference order stating that there is no for impleader. Opposing defendants further assert that even if the second third-party causes undue delay, delay alone is improper grounds to warrant severance of this thirdction since it involves common issues of law and fact with the main action DISCUSSION rsuant to CPLR 603, in furtherance of convenience or to avoid prejudice the court a severance of claims, or may order a separate trial of any claim, or of any separate court may order the trial of any claim or issue prior to the trial of the others. The of a separate trial of a claim or separate issue under CPLR 603 is a discretionary determination (see Baseball Off of Commr. v Marsh & McLennan, 295 AD2d 73 [I st Dept 20021). 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]). A court may sever related actions with a common nucleus of fact to prevent prejudice or ial delay to a party (see Sichel v Community Synagogue, 256 AD2d 276, 276 [Ist Dept laintiffs may be substantially prejudiced if they must await the completion of disclosure for a third-party action that is not severed from the main action (see Blechrnan v Peiser s & D2d 50, 51 [ l s t Dept 19921 [where second third-party action was initiated more than er main action]; see also Rofhstein v Millerridge Inn, 251 AD2d 154, 155 [ l s t Dept e the main action was trial-ready but still-outstanding discovery on the third-party Page 4 of 6 [* 5] would unreasonably delay bringing the plaintiffs case to trial, a joint trial of the main and third-party actions could prejudice the plaintiff']; Pena v City of New York, 222 AD2d 233 19951). The Court's exercise of that discretion "will not be disturbed absent [an] abuse tion or prejudice to a party's substantial right" (Caruana v Padmanabha, 77 AD3d 1307, th Dept 20101, quoting Matter of Green Harbour Homeowners' Assn v Town of Lake rge Planning Board, 1 AD3d 744, 746 [3d Dept 20031). The Court finds that the second third-party action should be severed. Allowing the nd-third party action to proteed consolidated with the main action will result in substantial ce through undue delay and inconvenience. The original summons and complaint were n November 17, 2008 against He.negan and Skanska, and New Amsterdam and Disney ined by grant of motion on February 10,2011. Thus, over 3 years and over 16 months, tively, elapsed before the second third-party action against General Glass was nced. Moreover, although the main action is not trial ready, substantial discovery has n conducted. Numerous depositions have taken place: plaintiffs were deposed on four separate dates during 2010 and 201 1, Henegan and Skanska were deposed in September and tober of 201 1, and Disney produced non-party witnesses for depositions in November 201 1 pril 2012 (plaintiff's affirmation in support, 710, 11). If this action is not severed, General as stated in their affirmation in support, will want to conduct their own depositions of both plaintiff and defendants, and they would be entitled to do so. The repetition of party depositions is inconvenient, an undue burden on the plaintiffs, and contradictory to a speedy isposition of their case. Moreover, a third-party action commenced by Henegan in July of 2009 against General as discontinued in January of 2010. Skanska was aware of this action, did not implead I Glass alongside Henegan, and did not protest to the discontinuance of that action. knowledge of General Glass and its connection to the plaintiffs, and not only Page5of 6 [* 6] tinue the first third-party action but had the opportunity to commence a second at an earlier date. New Amsterdam and Disney were aware of the relationship Glass and this action, and could also have commenced the second-third party ell within the discretion of this Court to sever the second third-party action from the ntial undue delay, prejudice, and inconvenience to the plaintiffs in rmore, defendants have not shown why they are substantially prejudiced if ranted. The Court has considered the parties remaining CONCLUSION h Bee and Theresa Bee s motion for an order severing erein action, is granted; and it is further, directed to serve a copy of this Order with Notice of Support Office which is directed to effectuate the stitutes the Decision and Order of the Court. NON-FINAL DISPOSITION heck if appropriate: : [I] DO NOT POST Page6of 6 n REFERENCE
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