Perez v Argo Corp.

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Perez v Argo Corp. 2017 NY Slip Op 32938(U) December 22, 2017 Supreme Court, Queens County Docket Number: 7947/09 Judge: Janice A. Taylor 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] 7947/2009 COPY OF ORDER W/NOTICE OF ENTRY WITH AFFT OF SVC Pl\)O 3 ol 11 PllQO 1 of~ Of Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY Present: HONORABLE JANICE A. TAYLOR Justice IAS Part _ ---------------------------------------x JOSE PEREZ, Index No.: 79 47 /09 Plaintiff (s), Motion Date:2/17/17 - and - Motion Cal. No. : 100,101 Motion Seq. No: 7,8 ARGO CORPORATON and PS MARCATO ELEVATOR CO., INC., Defendant (s). ------------------------------------------x ARGO CORPORATION, Third-party Plaintiff(s), - and ARGO CORPORATON and PS MARCATO ELEVATOR CO., INC., Thirty-party Defendant(s). ------------------------------------------x The following papers numbered 1 - 42 read on this motion by the third-party defendant for an order dismissing the third-party complaint for its failure to state a cause of action; a separate motion by the third-party defendant for an order dismissing the third-party complaint for defendant/third-party plaintiff's failure to comply with outstanding discovery demands; and a cross-motion by plaintiff for an order severing the third-party action; and a separate cross-motion by defendant/third-party plaintiff for an order striking the third-party defendant's answer . Papers Numbered Notice of Motion-Affirmation-Exhibits-Service ...... . . Notice of Motion-Affirmation-Exhibits-Service .. ... .. . Notice of Cross-Motion-Affirmation-Exhibits-Service .. Notice of Cross-Motion-Affirmation-Service ...... . ... . Affirmation in Partial Opposition-Exhibits-Service .. . Affirmation in Partial Opposition-Exhibits-Service .. . Affirmation in Partial Opposition-Exhibits-Service .. . Affirmation in Opposition-Exhibits-Service ......... . . Affirmation in Opposition-Exhibits-Service ...... . .. . . Affirmation in Opposition-Exhibits-Service .. . ..... .. . 1 - 4 5 9 13 16 19 22 25 28 31 - 8 12 15 18 21 24 27 30 33 PMted: 1117'2018 Printed 11/9/201& [* 2] _ - ··--- 7947/2009 COPY Of ORDER W/NOTICE Of ENTRY WITH AFFT Of SVC ............ ............. ...... ........... ... ~- Page 4 of II P0902of S Affirmation in Opposition-Exhibits-Service . ......... . Affirmation in Opposition-Exhibits-Service ....... ... . Affirmation in Opposition-Service .............. . .... . Affirmation in Opposition-Service .... .. ........ ... .. . Memorandum of Law .. ............ ... ............. ... . . . Reply Affirmation-Exhibits-Service . ...... ....... .. .. . Reply Affirmation-Exhibits-Service ... .. ......... . .. . . Reply Affirmation-Exhibits-Service . ... .............. . Reply Affirmation-Exhibits-Service ....... ... ........ . 35 - 38 - 40 - 42 33 - 36 39 41 43 44 47 50 53 - 46 49 52 55 1 Upon the foregoing papers it is ORDERED that the motions and cross-motions are considered together and decided as follows: This is an action for personal injuries allegedl y sustained by the plaintiff on March 15, 2008 when he was injured whi le worki ng at the premises located at 300 West 108th Street, in the County, City and State of New York. This acti on was commenced on February 19, 2009 by the filing of a summons and complaint. Plaintiff filed his Note of Issue on September 3, 2010. On September 8, 2011, the filed Note of Issue was vacated by the Justice presiding over this court's Trial Scheduling Part. To date, no new Note of I ssue has been filed. On or about December 4, 2015, defendant Argo Corporation ("Argo") commenced a third-party action against Sierra Consulting Group ("Sierra" ) . Motion to Dismiss the Complaint First, this court will consider the motion by third-party defendant Sierra which seeks to dismiss the third-party complaint against it, pursuant to CPLR §3211 (a) (7) for the third-party plaintiff's failure to state a cause of action . It is well-settled that a motion made pursuant to CPLR §32ll(a ) (7) can only be gran t ed if , from the pleadings' four corners, factual allegati ons are not discerned which manifest any cause of action cognizable at law. In furtherance of this task, the court liberally construes the complaint, accepts as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion, and accords the plaintiff the benefit of every possible favorable inference (see, 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y . 2d 144 (2002] l. I t is also well-settled that in deciding a motion made pursuant to CPLR §32 ll( a ) (7) , a court will decide whether a complaint makes out any cognizable cause of action, not whether a plaintiff will ultimately win on the merits of the allegat ions contained therein (see, Stukuls v. State of New York, 42 NY2d 272 (1977); Jacobs v. Macy's East, 262 AD2d 607 [2d Dept. 1999] ) . With this motion, th i rd-party defendant Sierra assert s that , as the Note of Issue was vacated on September 8, 2011 and not restored to the court's active calendar within one year, the 2 ftrwtttd' t/1712018 Printed 111912018 [* 3] Pogo 5 or 11 POQO lol~ complaint in this action was deemed automatically dismissed, pursuant to CPLR §3404, in September, 2012. Thus, third-party defendant Sierra asserts that, as there was no active action in December, 2015, the third-party complaint served on it is a legal nullity. CPLR §3404, authorizes the dismissal of an action that i s not restored to the court's calendar within one year of being stricken. However, in the instant action, the action was never stricken from the court's calendar, nor was the complaint dismissed. The vacatur of the filed Note of Issue simply removed the action from the court's trial calendar and placed it back into pre-note status. Consequently, where the Note of Issue is vacated, the situation herein, the one (1) year period in which to seek restoration under CPLR §3404 is inapplicable. Consequently, third-party defendant Sierra's argument that the third-party complaint is a nul l ity which must be dismissed is erroneous. Accordingly, third-party defendant Sierra's motion to dismiss the third-party complaint, pursuant t o CPLR §32ll (a) (7), is hereby denied. Cross-Motion to Seyer This court will now consider plaintiff's motion to sever the third-party action from the main action. In support of its motion, plaintiff's counsel asserts that discovery is complete in the main action, that discovery is not complete in the third-party action and that the plaintiff will be harmed by any further delay in prosecution of his claim. Thus, plaintiff seeks an order severing the third-party action from the main action. Under CPLR §603, the court may order a severance of claims for convenience or to avoid prejudice. This court hereby rules that severance of the third-party action is unwarranted. The questions of law and fact involved in the main action and the third-party actions are inextricably interwoven. Therefore, a single trial is appropriate in furtherance of the interests of judicial economy and to prevent inconsistent results (see, e.g., Shanley v. Callanan Indus., 54 N.Y . 2d 52, 57 (1981); Pescatore v. American Export Lines, 131 A.D.2d 739 [2d Dept. 1987]; Power Test Petroleum Distribs. v. Northville Indus. Corp., 114 A.D.2d 405, 407 [2d Dept. 1985); Baker v. Wight, 158 A.D.2d 293 [l~t Dept. 1990); Guilford v. Netter, 179 A.D.2d 801 [2d Dept. 1992); Klein v. City of Long Beach, 154 A.D.2d 346 [2d Dept. 346 (2d Dept. 1989); Jones-Ledbetter v. Biltmore Auto Sales, Inc., 239 A.D.2d 390 [2d Dept. 1997]). Al though there has already been considerable delay in the progress of this action, there has been no demonstration that a brief additional delay to permit discovery in the third-party action will cause substantial prejudice to the plaintiff in the 3 Pttnltd 111712011 Pnnted 1119/2018 [* 4] P•o• e 7S.7/l009 COPY Of ORDER WINOTICE OF ENTRY WITH AFn OF SVC •- •· ..- ....,, ~,, -'- ,~~WVCOl-C• I ~-...... or 11 ... ... J main action (see, CPLR. §603, Ambriano v. Bowman, 245 A.D.2d 404 [2d Dept. 1997]; Wassel v. Niagra Mohawk Power Corp., 307 A.D.2d 752 [4 th Dept. 2003); Pescatore v. American Export Lines, supra ) . Any alleged prejudice to the adverse parties may be cured by the court's direction that discovery in the third-party action be completed expeditiously within the time frame imposed herein (see, e.g., Zaveta v. Portelli, 127 A.D.2d 760 [2d Dept. 1987); Fries v . Sid Tool Co., 90 A.D.2d 512 [2d Dept. 1982); Johnston Prods. Corp. v. ATI, Inc., 87 A.D.2d 604 [2d Dept. 1982); Klein v. Long Beach, supra; Jones-Ledbetter v. Biltmore Auto Sales, Inc., supra ) . To insure that none of the parties is prejudiced by undue delay, the third-party defendant will be afforded an adequate opportunity to conduct its discovery in an expeditious manner. Discovery Related Motion and Cross-motion Third-party defendant Sierra also moves, pursuant to CPLR §§3126, to dismiss the third-party complaint, and defendant PS Marca to Elevator Co., Inc .' s cross-claims against Argo, or to compel these parties to respond to outstanding discovery demands. A review of the responsive papers from defendant /third-party defendant Argo reveals that Argo has now responded to the outstanding discovery demands . Thus, that portion of the instant motion which seeks dismissal of the third-party complaint is denied. A review of the response served by defendant PS Marcat o Elevator Co. reveals that this defendant did not supply substantive answers to the discovery demand . Instead, defenda nt PS Mercato simply stated that they would respond upon the c lose of discovery. This response is unacceptable to this court. Thus, that portion of the instant motion which seeks an order compelling defendant PS Mercato to respond to outstanding discovery demands served by the third-party defendant is granted. Finally, third-party plaintiff Argo's cross-motion t o strike the third-party answer due to third-party defendant's failure to respond to outstanding discovery demands is denied. In order to prevail on discovery-related applications, an affirmation of good faith specifically delineating the conversations between counsel in an attempt to comply with the above directive is required. The affirmation must indicate the time, place and nature of the consultations between att orneys, the issues discussed, and what resolutions, if any, were made (see, 22 N. Y.C.R.R. §202. 7 [a), [c)). No such affirmation is annexed to the instant application. As a result, it is, third-party defendant Argo's cross-motion is hereby denied. Accordingly, it is, ORDZRBD, third-party de~endant Sierra ia directed to aerve a copy oE thi• order with notice of entry upon all partie• on or be£ore January 31, 2018. It ia further, 4 I Prinlld. 11171201! Printed 11/M018 [* 5] 7~7/200G , _ P1g17 of 11 COPY Of ORDER W/NOTICE Of ENTRY WITH AFFT OF SVC ,,_ . Vf\IJCI\ ~C.a.i 0-C.WVC."""'C •1""""'"'" P1g1 5ol5 ORD&UD, that defendant PS Marcato &l.evator Co . , Inc. will a aubatantiv• reapona• to thi.rd-party defendant Sierra' a o..&nd for a Bill of Particular• dated July 12, 2016 within thirty (30) daya of the date of aervice of thia order with notice of entry. It i.a further, ••rve ORDERED, that all di.acovery in thia action a hall be completed within ninety (90) day• of the date of aervice of thia order with notice of entry. Plaintiff i• directed to file hi• Note of I••u• on or before May 15, 2018. Any further requeata not specifically addreaaed by thia court are hereby ct.nied. Thia conatitutea the order and deciaion of thia court. Dated: December 22, 2017 H : \ O e c i s i o n s P a r l ~ \ Oecis ions-2017 \0iscovery \ 7947- 0 9_pere z_<1iscovery_noirestored_3ps e ver_good!a ith_Sf0. wpd 5 - 1117/2011 Printed 11/9/2018

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