Tank v Westchester County Health Care Corp.

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Tank v Westchester County Health Care Corp. 2018 NY Slip Op 34447(U) September 26, 2018 Supreme Court, Westchester County Docket Number: Index No. 67582/2014 Judge: Terry Jane Ruderman 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: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 commence the the statutory statutory time time period period for To commence appeals as ofright of right [CPLR [CPLR 5513(a)], 5513(a)], you you appeals this order, advised to serve serve a copy copy of of this order, are advised.to · with notice notice of of entry entry upon upon all parties. parties. with YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME PART. ANCE ER-COMPLI COUNTY OF WESTCHEST WESTCHESTER-COMPLIANCE PART COUNTY ______________________________________________________ -----~-----------x --------------------. --------------------------------------.---------·-x MAUREEN TANK, TANK, as Guardian Guardian Ad Ad Litem Litem of of ZACHARY ZACHARY MAUREEN TANK and and MAUREEN MAUREEN TANK, TANK, Individually, Individually, TANK DECISION AND AND ORDER ORDER . DECISION Sequence No. NO.55 Sequence Index No. 67582/2014 No. 67582/2014 Index Plaintiffs, Plaintiffs, -against-againstWESTCHESTER COUNTY HEALTH HEALTH CARE CARE ER COUNTY WESTCHEST HASIT M.D., HASIT CORPORATION, GOLDSTEIN, , M.D., MARK GOLDSTEIN ON, MARK CORPORATI RICH;ARD M.D., MEHTA, M.D., VLADIMIR PRYJDUN, M.D., RICHARD PRYJDUN, MEHTA, M.D., VLADIMIR CHOU, M.D., MAGILL, IRLNATANTCHOU, M.D., M.D., arid IRLNATANT MAGILL, M.D., Defendants. Defendants. ______________________________________________ ~ -------------------x ----------------------------------------------·------------:----.--------x TH CARE WESTCHESTER COUNTY HEAL HEALTH CARE ER COUNTY WESTCHEST ', CORPORATION, ON, CORPORATI Third-Party Plaintiff, Plaintiff, Third-Party -against-against- ANESTHESIA,. NORTH PARTNERS IN ANESTHESIA, AMERICAN PARTNERS NORTH AMERICAN .. L.L.P., L.L.P., , Third-Party Defendant. Defendant. Third-Party ______________________________________________________ -----------------x ----------------- ----------------- ----------•------ ----------------- -- X RUDERMAN, , J. . RUDERMAN motion with third-party The following following papers considered in connection with third-party defendant's defendant's motion jn connection were considered papers were The prejudice the without prejudice for an order order pursuant CPLR 603 and and 1010, severin,g severing or dismissing dismissing without the thirdthirdpursuant to CPLR for other 'and party action from the the underlying underlying action, action, and: and for su.ch such other and further further relief relief as this this Court Court may may party action 'f' ' deem just and proper. proper. just and deem 1 [* 1] 1 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM -·, ~~ NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 ' RECEIVED NYSCEF: 09/26/2018 Numbered Numbered . Papers Papers Order to Show Show Cause, Cause, Affirmation Affirmation in Support, Support, Exhibits Exhibits A - K Order Affirmation in Opposition Opposition of of Defendant/Third-Party Defendant/Third-Party Plaintiff, Plaintiff, Affirmation · Exhibits A -_pI P1 Exhibits Reply Affirmation Affirmation Reply Plaintiff Affirmation Opposition of of Plaintiff Affirmation in Opposition 1 2 3 4 This action action to recover recover damages damages for pe~sonal injuries injuries allegedly allegedly sustained sustained by Zachary Zachary Tanlc Tank This Health Care during the course course of of his treatment Care Corporation Corporation (WCHCC) (WCHCC) ~ounty Health Westchester County treatment at Westchester during was commenced commenced in October October 2014. 2014. WCHCC WCHCC answered answered the complaint complaint in November November 2014 2014... ~as North physician employed WCHCC's co-defendants, co-defendants, including including Dr. Vladimir Vladimir Pryjdun, Pryjdun,aa physician employed by North WCHCC's American Partners Partners in Anesthesia Anesthesia LLP (NAPA), (NAPA), interposed interposed answers answers between between December_2014 December 20 14 and American February 2015. 2015. Following Following numerous numerous compliance compliance conferences, conferences, the Court Court issued issued a trial trial r~adiness readiness February order on July July 24, 2017, 2017, and plaintiffs plaintiffs filed filed a note note of of issue issue on August August l, 1, 2017. 2017. On On April April 16, 2018, 2018, order . .. . WCHCC commenced commenced a third-party third-party action action against against NAPA seeking, among among qther qther things, things, NAPA see.king, WCHCC contractual indemnification. indemnification. NAP A. now now moves moves for an. order order pursuant pursuant to CPLR CPLR 603. and 1010 NAPA contractual severing or dismissing dismissing without without prejudice prejudice the third-party third~party action, action, and.for and for such.other such other and further· further severing proper. just and proper. relief Court may deem just may deem this Court relief as this (( NAPA contends contends that that severance severance or dismissal dismissal of of the the third-party third-party action action is warranted warranted because because NAPA basis for though the basis WCHCC waited 2018 to commence commence the third-party third-party action, action, even even though until 2018 waited until WCHCC A WCHCC's suit suit against against NAP NAPAA is an Anesthesia Anesthesia Services Services Cori.tract Contract between between WCHCC WCHCC and NAP NAPA. WCHCC's , .. that has been effect since since November 2011. NAPA argues that that WCHCC WCHCC knew knew as early early as 2013 NAPA argues November 2011. been in effect that • •+ . (when plaintiffs plaintiffs served served a notice notice of of claim claim on WCHCC) WCHCC) that that the Anesthesia Anesthesia -Services Services Contract Contract was (when potentially implicated, and and that that WCHCC WCHCC h~s no valid valid excuse excuse for failing failing to commence commence the thirdthirdpotentially implicated, ,> Under the guise guise of of requesting requesting leave leave to file a surreply, surreply,defendant/third-party plaintiff essentially essentially defendant/third-party plaintiff Under not unauthorized surreply filed a surreply surreply in the forin forin of of a lengthy lengthy letter letter addressed-to addtessedto the Court. Court. The The unauthorized surreply has not filed been considered. been considered. 11 2 [* 2] 2 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 third-party the third-party filed the WCHCC filed time WCHCC the time party that by the asserts that manner. It asserts timely manner. action in a timely party action the completion issue attesting note of complaint, extensive extensive discovery discovery had of issue attesting to the completion of of conducted, a note been conducted, had been complaint, numerous issue, numerous of issue, note of the note vacate the all discovery moved to vacate had moved party had and no party filed and been filed had been discovery had been had been motions had those motions issue and those of issue defendants post.,.note of judgment post,.note su1?111-ary judgment moved for su~ary had moved defendants had begin.·.. about to begin was about trial was and trial decided,2 and proceed position to proceed and is in no position discovery and NAP substantial discov~ry requires substantial that it requires contends that next contends NAP A next crosscounterclaim for crossincludes a counterclaim action includes to trial the third-:party action because the that because posits that time. It posits this time. trial at this not only will be obligated NAP A will not severed, indemnification, if if the action is not severed, NAP obligated to not only third-party action the third-party indemnification, may that may wrongdoing that that any wrongdoing demonstrate that defend but to also demonstrate employees, but against its employees, claims against defend any claims that acknowledges that NAPA acknowledges have employees and staff. NAPA ofWCHCC's employees result ofWCHCC's the result was the occurred was have occurred pleadings and WCHCC allegedly containing containing copies copies of of pleadings and discs allegedly numerous discs with numerous provided it with has provided WCHCC has .... f. will material will that material of that review of since review NAPA since medical no help help to NAPA ofno "this is of that "this asserts that but asserts records, but medical records, have to will have discovery will new discovery oftime take time for new amount of significant amount WCHCC and a significant with WCHCC did with years as it did take years Accordingly, be undertaken focus on WCHCC'spotentialliability" (NAPA Aff. ,I26). ~26). Accordingly, WCHCC's potential liability" (NAPA with a focus undertaken with had an not had has not denied, as it has motion is denied, if its motion NAP prejudice if substantial prejudice suffer substantial will suffer that it will claims that NAP A claims discovery. conduct discovery. adequate opportunity to conduct adequate opportunity third-party action NAPA opines that contrast, WCHCC suffer no prejudice if the third-party action prejudice if WCHCC will suffer that by contrast, NAPA opines prevent not prevent will not action will main action the main is severed, a liability WCHCC WCHCC in the against finding against liability finding because severed, because ~ . ~ , ' also action. It also third-party action. the severed WCHCC severed third-party in the NAP A in against NAP recovering against potentially recovering from potentially WCHCC from named "two named that "two complains that further complains 22 With NAPA further motions, NAPA judgment motions, summary judgment the summary respect to the With respect their submitted was opposition that fact parties have been dismissed from the case due to the fact that no opposition was submitted to their the the case due parties have been dismissed these before these case before the case details of the details review the motions summary judgment. A had of the opportunity to review had no opportunity NAPA judgment. NAP for summary motions for must WCHCC and NAPA between NAPA claims between the claims If the defendants WCHCC must be discontinued. If voluntarily discontinued. essentially voluntarily were essentially defendants were opportunity to NAPA given re-done and tried together, the discovery discovery in this action must completely re-done and NAPA given an ':mopportunity be completely must be this action tried together, matter" (NAPA this complicated explore each each and every every facet facet of of the causation and and damages damages in this complicated matter" (NAPA liability, causation the liability, explore ,121). Aff. ~21). 3 [* 3] 3 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 dispute any dispute because any efforts because of efforts duplication of argues will be no duplication there will granted, there severance is granted, if severance that if argues that WCHCC and WCHCC NAPA involving NAP issues involving the issues limited to the betw~en A and WCHCC A and will be limited WCHCC will NAPA betw~en NAP co-defendants. WCHCC's co-defendants. involving WCHCC's employees, issues involving relate to any issues not relate will not and will employees, and have third-party .action WCHCC arguing that action and and the third-party ,action have main action the main that the motion, arguing the motion, opposes the WCHCC opposes thirdthe thirdof the severance of that severance "common, ~20), that (WCHCC Aff. 120), fact" (WCHCC and fact" oflaw and issues oflaw intertwined issues "common, intertwined trials on this conducting two trials that conducting verdicts, and party action would specter of of inconsistent inconsistent verdicts, and that the specter raise the would raise party action those identical to those interests are identical NAP A's interests that NAPA's matter asserts that Court. It asserts the Court. burdensome for the would be burdensome matter would main the main defendant in the been a defendant has been Pryjdun has of NAPA's employee, employee, Dr. Pryjdun, Pryjdun, and and notes notes that that Dr. Pryjdun ofNAPA's own that "[s]ince claims that WCHCC claims action specifically, WCHCC "(s]ince [NAPA's] [NAPA's] own More specifically, inception. More since its inception. action since credibly cannot credibly NAPA cannot plaintiff, NAP the plaintiff, liable to the liability found liable being found Pryjdun being upon Dr. Pryjdun contingent upon liability is contingent action is . main action Dr. Pryj<iun in the main of Dr.Pryj<:lun take behalf of mounted on behalf defense mounted that the defense position that the position take the (WCHCC Aff. 125). action" (WCHCC third-party action" somehow ~25). the third-party interests in the protect its interests insufficient to protect somehow insufficient WCHCC disputes NAPA's assertion that c0u.nterclaim for cross-indemnification cross-indemnification in NAPA's coupterclaim that NAPA's NAPA's assertion WCHCC also disputes committed WCHCC had committed that WCHCChad proof that present proof the NAPA to present require NAPA would require action would third-party action the third-party efforts their efforts united in their NAPA are united and NAP medical arguing that "WCHCC and that "WCHCC versa, arguing vice versa, malpractice, and vice medical malpractice, that any and that Pryjdun, and practice by Dr. Pryjdun, to establish accepted practice departures from accepted were no departures there were that there establish that Zachary Tank" injury to Zachary negligence substantial factor factor in causing causing injury Tank" (WCHCC (WCHCC not a substantial was not part was negligence on his part Aff. ~27). Aff.127). action third-party action the third-party commenced the that it commenced ~CHCC in that promptlyin acted promptly that it acted posits that next posits _WCHCC next motion for WCHCC's motion denying WCHCC's within Order denying Decision and Order Court's Decision this Court's of this receipt of of receipt months of two months within two that claims that further claims against it. It further asserted against summary insofar as asserted complaint insofar the complaint dismissing the judgment dismissing summary judgment that understand that 2018, its counsel upon contacting NAPA on April counsel "came "came to understand April 13, 2018, telephone on NAP A by telephone upon contacting employee, Dr. of its employee, behalf of inception on behalf NAPA since its inception case since this case following this closely following be~n closely had been NAPA had 4 [* 4] 4 of 9 INDEX NO. 67582/2014 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 RECEIVED NYSCEF: 09/26/2018 Pryjdun" Pryjdun" (WCHCC (WCHCC Aff. if23). ~23). WCHCC WCHCC concludes concludes that that becauseNAPA because NAPA allegedly allegedly followed followed the the main NAPA main action, action, NAP A can can claim claim neither neither prejudice prejudice nor not surprise surprise regarding regarding WCHCC's WCHCC's commencement commencement of of the the third-party third-party action action on April April 16, 16,2018. 2018. WCHCC NAPA received WCHCC further further argues argues that that not not only only has has NAP received all discovery discovery exchanged exchanged in the the main but NAPA NAPA has'also main action, action, but has also received received responses responses to discovery discovery demands demands served served in the the thirdthirdparty action. NAP A to receive bill of party action. According According to WCHCC, WCHCC, there there is no need need for NAP receive a bill of particulars, particulars, to depose depose the the defendants defendants in the the main main action, action, to review review medical medical records, records, or to retain retain new new experts. experts. WCHCC NAP A, by conducting WCHCC deems deems it "entirely "entirely speculative speculative to suggest suggest that that NAP conducting additional additional depositions, depositions, could could fortuitously fortuitously unearth unearth some some shred shred of of relevant relevant evidence evidence that that the the combined combined efforts efforts of NAP A's of plaintiffs' plaintiffs' and defendants' defendants' counsel counsel failed failed to elicit" elicit" (WCHCC (WCHCC Aff. if29) ~29)... It rejects rejects NAPA's contention contention that that a review review of of the the medical medical records records in this this matter matter would would take take years, years, and and represents represents that NAPA has medical records. that NAPA has in fact already already reviewed reviewed all pertine11t pertinellt medical records.33 NAPA's position can be summarized NAPA's position on rep!y rep!ycan summarized as follows: follows: "(WCHCC] "[WCHCC] maneuvered maneuvered the the case case to dispose dispose of of any direct direct claims claims against against itself itself and then, then, four four years years later, later, commenced commenced a thirdthirdparty action action against against NAP box NAP NAP A into into having having no opportunity opportunity to complete complete discovery discovery party NAP A so as to box of trial trial and now now claims claims that that NAPA NAPA does does not not need need any discovery discovery because because [WCHCC], [WCHCC], on the eve of seeks total total indemnification indemnification against against NAP A, is somehow somehow going going to protect Pryjdun's who seeks NAPA, protect Dr. Pryjdun's defense" NAPA opines 2018 defense" (Reply (Reply Aff. ifl4). ~14). NAPA opines th~t that WCHCC's WCHCC's t~lephone telephone call on April April 13, 13,2018three three days prior prior to filing filing the third-party third-party complaint-in complaint - in no way ~ay excuses excuses WCHCC's WCHCC's four four year year . - I . delay that delay in commencing commencing the the third-party third-party action, action, and urges urges this this Court Court to reject reject WCHCC's WCHCC's claim claimthat based on WCHCC's WCHCC's counsel's counsel's purported "understanding," NAPA had been been following following the the ~ain main based purported "understanding," NAPA had action. NAPA action. With With respect respect to WCHCC's WCHCC's contention contention that that NAP A doe~ does not not need need to conduct conduct discovery discovery in 3 3 Plaintiff primarily on WCHCC's Plaintiff also also opposes opposes the the motion, motion, relying relying primarily WCHCC's arguments arguments. .. 5 [* 5] 5 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 ) ,J light NAP A reasons light of of the extensive extensive discovery discovery already already exchanged, exchanged, NAPA reasons that that if if the the discovery discovery conducted to date date was was in fact sufficient, sufficient, both both Dr. Pryjdun's Pryjdun's and WCHCC's WCHCC's motions motions for summary summary conducted judgment dismissing judgment dismissing the the complaint complaint insofar insofar as asserted asserted against against each each of of them them would would have have been been granted. granted. Therefore, Therefore, it argues, argues, "obviously "obviously the the discovery discovery offered offered by [WCHCC] [WCHCC] is of of no use use to . . . ~ .. NAPA" (Reply NAPA also finds NAPA" (Reply Aff.113). Aff. ~13). NAPA finds unpersuasive unpersuasive WCH;CC's WCH;CC's contention contention that that inconsistent inconsistent verdicts proceedings after verdicts may may be issued issued ih in the the case case of of severance, severance, asserting asserting that that "any "any further further proceedings after a potential liability finding finding against against [WCHCC] [WCHCC] would would only only involve involve what what aspect aspect of of that that liability liability potential liability NAPA should NAPA argues NAPA should bear" bear" (Reply (Reply Aff. 118) ~18) .... Lastly, Lastly, NAPA argues that that the the cases cases cited.by cited by WCHCC WCHCC in NAPA's motion opposition to NAPA's motion are distinguishable. distinguishable. opposition CPLR provides that CPLR 603 provides that the the court court may may order order a severance severance of of claims claims or a separate separate trial trial of of any claim claim or issue issue in furtherance furtherance of of convenience convenience or to avoid avoid prejudice. prejudice. Pursuant Pursuant to CPLR CPLR 1010, the court prejudice, order court may may dismiss dismiss a third-party third-party complaintwithout complaint without prejudice, order a separate separate trial t~ial of of the the third-party just. In third-party claim claim or of of any separate separate issue issue thereof, thereof, or make make such such other other order order as may may be just. exercising exercising its discretion, discretion, the court court shall shall consider consider whether whether the controversy controversy between between the the third-party third-party plaintiff plaintiff and the the third-party third-party defendant defendant will will ~duly un,duly delay delay the determination determination of of the the main main action action or prejudice prejudice the substantial substantial rights rights of of any party party (see CPLR CPLR 1010). 1010). Even Even where where the the main main action action and· and' the third-party third-party action action share share common common questions questions of of law law and and fact, severance severance may may be.appropriate be appropriate when the main main action action is ready ready to proceed proceed to trial, trial, discovery discovery in the the third-party third-party action action is incomplete incomplete when due to a delay delay in the the commencement commencement of of the the third-party third-party action, action, and and the the third-party third-party defendant defendant has has not had Piccolo, 161 AD2d had an adequate adequate opportunity opportunity to conduct conduct discovery discovery (see Singh Singh v. v. Piccolo, AD2d 698 [2d Dept La Guardia Hospital, 125 AD2d Dept 1990]; 1990]; Zuckerman Zuckerman v La Guardia Hospital, AD2d 304 304 [2dDept.1986]). [2dDept1986]). In the the case case at bar, the the main main action action was was commenced commenced more more than than three three and and a half half years years before before WCHCC WCHCC commenced commenced the the third-party third-party action. action. In ad_,dition, adJlition, a note note of of issue issue stating stating that that the 6 [* 6] 6 of 9 I' I -I I , I• Ii I I FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 WCHCC before WCHCC months before nine months nearly nine case action nearly main action the main filed in the was filed trial44 was ready for trial was ready case was WCHCC although WCHCC that although indicates that record indicates the record commenced the action. Furthermore, Furthennore, the third-party action. the third-party commenced NAPA, and NAPA, between WCHCC and Services Contract betweenWCHCC knew, Anesthesia SetvicesContract the Anesthesia of the known, of have known, should have knew, or should provide a failed to provide WCHCC has failed third-pa1iy action. delayed commencing commencing the action. WCHCC the third-party nevertheless delayed it nevertheless delay. the delay. satisfactory explanation for the satisfactory explanation participate not participate which did NAP A, which that NAPA, Court finds argument that did not WCHCC' s argument merit WCHCC's without merit finds without The Court discovery conduct discovery need to conduct not need does not in any of matter, does this_matter, conducted in this depositions conducted numerous depositions the numerous of the interests are WCHCC's interests because WCHCC's and because because discovery and conducted discovery already conducted have already parties have other parties because other that assertion that WCHCC's assertion unpersuaded by WCHCC's allegedly similarly unpersuaded Court is similarly The Court NAPA's. The with NAPA's. aligned with allegedly aligned purportedly was purportedly counsel, was WCHCC's counsel, NAPA according to WCHCC's NAPA, according because NAPA, surprise because claim surprise cannot claim NAPA cannot prior to notice prior days' notice three days' NAPA three WCHCC gave because WCHCC following the action closely, and because gave NAPA closely, and main action the main following conduct its opportunity to conduct adequate opportunity had an adequate not had has not filing which has NAPA, which action. NAP third-party action. filing the third-party not third-party action that the event own discovery, discovery, would substantial prejudice event tllat action is not prejudice in the suffer substantial would suffer own - the third-party . severed. severed. main the main that the WCHCC' s assertion value WCHCC's Under circumstances, even even taking assertion that taking at face value these circumstances, Under these thirdthe thirdof the severance of and fact, severance oflaw and questions oflaw common questions action share common action share third-party action the third-party and the action and , ' Homeowners Assn.; Inc. Hills Homeowners party action from action is appropriate appropriate {see Whippoorwill Hills (see Whippoorwill main action from the main party action main where main wan-anted where [severance warranted v Toll at Whippoorwill, L.P., Dept2012] [severance AD3d 864 [2d Dept2012] L.P., 91 AD3d at Whippoorwill, had action had main action the main action, the third-party action, the third-party action before the years before four years than four more than commenced more was commenced action was opportunity to adequate opportunity "an adequate have "an not have been and third-party defendants did not third-party defendants trial, and certified for trial, been certified given, warranted given, 2006] [severance Dept 2006] complete [severance warranted AD3d 833 [2d Dept Baez, 29 AD3d833 Abreo v Baez, discovery"]; Abreo complete discovery"]; the when the ready when trial ready was trial action was 44 The main action the main that the reflects that record reflects the record while the that while notes that Court notes The Court motion parties' the to appended third-party action was. commenced, there is no indication iri the exhibits appended to the parties' motion exhibits indication the third-party action was·commenced, there 2018. papers 16,2018. .· April 16, of April set as of been set fact been had in fact date had trial date that a trial papers that 7 [* 7] 7 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 :,,'. among other other things, things, "the "the completion completion of of discovery discovery in the-main the main action" action" and and "the "the inordinate inordinate and among inexcusable delay delay by the defendants defendants third-party third-party plaintiffs commencing the third-party third-party action"]; action"]; inexcusable plaintiffs in commencing Garcia v Gesher Gesher Realty Corp., 280 280 AD2d AD2d 440 [1st Dept Dept 2001] 2001] [severance [severance warranted warranted where where Garcia Realty Corp., defendants delayed delayed commencement commencement of of the third-party third~party action action until until after after the note note of of issue issue had had been defendants been third-party defendants defendants needed needed to condu~t condu~t discovery]; discovery]; Cusano Cusano v Sankyo Sankyo Seiki Seiki Mfg. Co., filed, and third-party AD2d 489 [2d Dept Dept 1992] [severance [severance warranted warranted where where there there was was an an:unjustifiable delay in 184 AD2d unjustifiable delay filing a second second third-party third-party action, action, the matter matter was was ,"about "about to to proceed trial," and second second thirdthirdfiling proceed to trial," party defendants had had not not had had an opportunity opportunity to con4uct conduct discovery]; discovery]; see also Soto Sofa v CBS CBS Corp., Corp., party defendants AD3d 740 [2d Dept Dept 2018] 20 18] [dism~ssing [dismissing third-:partycomp}aint third-:party comp1aillt where where third-party third-party plaintiff 157 AD3d plaintiff "deliberately and intentionally intentionally delayed delayed commencing commencing the third-party third-party action action for more more than than ~our four "deliberately years"]). 55 years"]). other arguments arguments raised raised and evidence evidence submitted subinitted by the the parties have been been considered considered by All other parties have Court notwithstanding notwithstanding any specific specific absence absence of'referen_ce of reference thereto. thereto. this Court Accordingly, it is: -. Accordingly, ORDERED that that the branch branch of of third-party third-party defendant's defendant's motion motion which which is for an order order ORDERED severing the third-party third-party action action against against it is granted; granted; and it is further, further, severing ORDERED that that the branch of third-party third-party defendant's defendant's motion motion which which is for dismissal dismissal of of ORDERED branch of third-party action action against against it is denied; denied; and anditit is further, further, the third-party . , ., .I" ORDERED that that counsel counsel for third-party third-party plaintiff plaintIff is directed directed to file an RJI and to pay the ORDERED 55 The The Court Court agrees agrees with with NAPA that the cases cases cited cited byWCHCC the contrary contrary view view are NAPA that byWCHCC for the distinguishable from from this this matter matter (see e.g. New York Schools Schools Ins. Reciprocal Sales Co., Inc., New York Reciprocal v Milburn Milburn Sales distinguishable 1388 AD3d AD3d 940 [2d Dept Dept 2016] 2016] [motion [motion to sever sever third-party third-party action action should should have have been denied, where where 13 been denied, defendant/third-party plaintiff "was not responsible for much much of of the IS-month 15-month delay delay in corpmencing commencing the defendant/third-party plaintiff "was not responsible third-party action" action" and and "at "at the the time time of of the the plaintiffs motion to sever, sever, discovery discovery was was only only partially third-party plaintiffs motion partially complete"]). complete"]). ·. 8 8. [* 8] 8 of 9 FILED: WESTCHESTER COUNTY CLERK 09/27/2018 04:28 PM NYSCEF DOC. NO. 261 INDEX NO. 67582/2014 RECEIVED NYSCEF: 09/26/2018 third-party action, action, and the County County Clerk Clerk is directed directed to issue issue a new new index index number number in RJI fee in the third-party third-party action, action, Counsel Counsel for third-party third-party plaintiff directed to provide County the severed severed third-party plaintiff is directed provide the County Clerk's Office Office with with a copy copy of of this this order, order, and to file an RJI, within within ten days of of the date date of of entry entry of of Clerk's this order; order; and and it is further, further, this ORDERED that that the parties severed third-party third-party action action are directed directed to appear appear in the ORDERED parties in the severed Preliminary Conference Conference Part Part on October October 29, 29,2018 9:30 a.m. at atthe Westchester County County the Westchester Preliminary 2018 at 9:30 Courthouse, Courtroom Courtroom 800, U 1.11 Martin Luther Luther King, King, Jr., Boulevard, Boulevard, White White Plains, Plains, New 1 Dr. Martin New Courthouse, York 10601; and it is further, further, York ORDERED that that the parties main action action are directed directed to appear appear in the Trial Trial Ready Ready ORDERED parties in the main Part on November 2018 at 9:30 9:30 a.m. at the Westchester Westchester County County Courthouse, Courthouse, Courtroom Courtroom 1200, Part November 5, 2018 11 Dr. Martin Martin Luther Luther King, King, Jr., Boulevard, Boulevard, White White Plains, Plains, New York 10601, 10601, as previously 't 11 New York previously directed. directed. This constitutes constitutes the Decision Decision and Order Order of of the Court. Court. This Dated: White White Plains, Plains, New York Dated: New York September2b, 2018 September2/> 2018 ~~ ~~HON.JANERlJDERMAN, HON. JANE RUDERMAN, J.S.C. J.S.C. 9 [* 9] 9 of 9 .

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