Mishael v Food Emporium

Annotate this Case

Download PDF

Mishael v Food Emporium 2018 NY Slip Op 31312(U) January 12, 2018 Supreme Court, New York County Docket Number: 155989/2012 Judge: Kelly A. O'Neill Levy 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. [*FILED: NEW YORK COUNTY CLERK 01/17/2018 12:36 PM 1] NYSCEF DOC. NO. 103 INDEX NO. 155989/2012 RECEIVED NYSCEF: 01/17/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 19 PART HON. KELLY O'NEILL LEVY Justice -----------------------------------------------------------------------------------X CINDY MISHAEL, INDEX NO. 155989/2012 Plaintiff, MOTION DATE -vMOTION SEQ. NO. FOOD EMPORIUM, WB/STELLAR IP OWNER LLC, STELLAR IP, LLC/INDEPENDENCE PLAZA ASSOCIATES LLC, ICON PATRIOT PARKING, LLC C/O MALLAH MANAGEMENT LLC, PATRIOT PARKING SERVICES INC., PATRIOT PARKING LLC, 004 DECISION AND ORDER Defendant. ----------------------------------------------------------------------------------X PATRIOT PARKING LLC d.b/a ICON, s/h/a PATRIOT PARKING, LLC., d/b/a ICON PARKING SYSTEMS, LLC, Third-Party Plaintiff, -vCONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Defendant. ----------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number 88-98, 100, 101 were read on this application to/for discontinue Upon the foregoing documents, it is Plaintiff seeks to discontinue this personal injury action against defendant Food. Emporium (who is subject to bankruptcy) 1 and sever any cross-claims made by co-defendants against Food Emporium and after the discontinuance and severance of the cross-claims, restoring the case to the "active status" so this action can be litigated. The defendants, Patriot Parking 1 Matter of The Great Atlantic & Pacific Tea Company, Inc., et al., pending in the U.S. Bankruptcy Court for the Southern District of New York [Case No. 15-23007 (RDD)J. 15598912012 MISHAEL, CINDY vs. FOOD EMPORIUM Page 1 of4 2 of 5 [*FILED: NEW YORK COUNTY CLERK 01/17/2018 12:36 PM 2] NYSCEF DOC. NO. 103 INDEX NO. 155989/2012 RECEIVED NYSCEF: 01/17/2018 LLC d/b/a ICON s/h/a Patriot Parking, LLC., d/b/a ICON Parking Systems, LLC herein after (Patriot Parking) oppose this application. WB/Stellar LP Owner LLC and Stellar IP LLC/ Independence Plaza Associates LLC, (Stellar) partially oppose this application. Former counsel for Food Emporium filed a letter dated August 30, 2017 notifying the court that the bankruptcy stay against Food Emporium is continued, and that accordingly, counsel had no authority to act on Food Emporium's behalf. The plaintiff contends that based on the discovery that has been completed, Food Emporium did not control, maintain, or have responsibility for the defect that caused the plaintiffs injuries. Defendant Patriot Parking argues that the bankruptcy stay bars this application, that Food Emporium may be liable for this accident, and that there is outstanding discovery that is required. Stellar requests that if the court grants the plaintiffs application, that all the cross claims be converted into third-party claims. Although defendant Patriot Parking argues that this motion violates the bankruptcy stay, a bankruptcy stay does not prevent a plaintiff from proceeding on causes of action against nonbankrupt defendants, which do not involve the property of the entity that has filed for bankruptcy protection. See Golden v. Moscowitz, 194 AD2d 385 (1st Dep't 1993) and Posada v. Pelaez, et al., 2006 WL 6867614 (N.Y. Sup. 2006). In this case, not only is the bankruptcy stay delaying plaintiffs action, but plaintiff asserts that this defendant is not liable for this accident. Therefore, the court grants the plaintiffs motion to discontinue this matter against Food Emporium and accordingly, Stellar's request that all cross claims be converted into third-party claims is also granted and a second-third party action is added to the caption as set forth below. However, as Food Emporium is subject to an 155989/2012 MISHAEL, CINDY vs. FOOD EMPORIUM Page 2 of4 3 of 5 [*FILED: NEW YORK COUNTY CLERK 01/17/2018 12:36 PM 3] NYSCEF DOC. NO. 103 INDEX NO. 155989/2012 RECEIVED NYSCEF: 01/17/2018 automatic stay pursuant to the Bankruptcy, Code, the second third-party action is also stayed. The third-party plaintiffs shall notify the court when the bankruptcy stay is lifted. Based on the foregoing, it is hereby ORDERED that the plaintiffs motion is granted and this action is discontinued as against Food Emporium and it is further ORDERED that defendants' cross-claims against Food Emporium are converted into second third-party action; and it is further ORDERED, that the caption is hereby amended as follows: -------------------------------------------------~----------------------~--------~-x CINDY MISHAEL, Plaintiff, -v- WB/STELLAR IP OWNER LLC, STELLAR IP, LLC/INDEPENDENCE PLAZA ASSOCIATES LLC, ICON PATRIOT PARKING, LLC C/O MALLAH MANAGEMENT LLC, PATRIOT PARKING SERVICES INC., PATRIOT PARKING LLC, Defendants. -----------------------------------------------------------------------------------X PATRIOT PARKING LLC d.b/a ICON, s/h/a PATRIOT PARKING, LLC., d/b/a ICON PARKING SYSTEMS, LLC, Third-Party Plaintiff, -vCONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Defendant. ----------------------------------------------------------------------------------X WB/STELLAR IP OWNER LLC, STELLAR IP, LLC/INDEPENDENCE PLAZA ASSOCIATES LLC, ICON PATRIOT PARKING, LLC C/O MALLAH MANAGEMENT LLC, PATRIOT PARKING SERVICES INC., PATRIOT PARKING LLC, Second Third-Party Plaintiffs, -vFOOD EMPORIUM, Second Third-Party Defendant. ----------------------------------------------------------------------------------x 155989/2012 MISHAEL, CINDY vs. FOOD EMPORIUM Page 3 of4 4 of 5 [*FILED: NEW YORK COUNTY CLERK 01/17/2018 12:36 PM 4] NYSCEF DOC. NO. 103 INDEX NO. 155989/2012 RECEIVED NYSCEF: 01/17/2018 And it is further ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the changes to the caption reflected above; and it is further ORDERED that counsel are to appear before the court on January 31, 2018 at 9:30 am at 60 Centre Street, Room 218 (Part 19), for a status conference. This constitutes the decision and order of the court. January ~}!,~Lwy \L, 2018 DATE CHECK ONE: . ~ X HON. KELLY O'NEILL LEVY J.S.C. CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: DO NOT POST FIDUCIARY APPOINTMENT D D OTHER REFERENCE Page 4 of4- 155989/2012 MISHAEL, CINDY vs. FOOD EMPORIUM 5 of 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.