Ho v PCK Realty Inc.
Annotate this CaseDecided on July 30, 2018
Supreme Court, New York County
Mary L. Ho, as Executrix of the Estate of HING DUEN HO, DUEN HO REVOCABLE TRUST and the HOO QAM HO REVOCABLE TRUST, Plaintiffs,
against
PCK Realty Inc., HONG KONG SUPERMARKET, INC., and A & M EAST BROADWAY LLC, Defendants.
HONG KONG SUPERMARKET, INC.,Third-Party Plaintiff,
against
A & M EAST BROADWAY LLC and RUSSO WRECKING INC.,Third-Party Defendants.
PCK REALTY INC., Second Third-Party Plaintiffs,
against
A & M EAST BROADWAY LLC and RUSSO WRECKING INC., Second Third-Party Defendants.
MARY L. HO, as Executrix of the Estate of HING DUEN HO, deceased,Plaintiff,
against
GREENWICH INSURANCE COMPANY, Defendant.
152652/2012
Daniel O'Connell
Mound Cotton Wollan & Greengrass
One New York Plaza
NY, NY 10004
FOR Greenwich Insurance Company
Stephen Marcus
Law Offices of Stephen Seung
2 Mott Street, Suite 601
New York, NY 10013
FOR Plaintiff
Christopher A. Wong
Bruce Somerstein & Assoc.
Seven Penn Plaza — Suite 420
New York, NY 10001 Attorneys did not file papers for
Hong Kong Supermarket
(Renee E. DeMott, Baxter Smith & Shapiro, PC
99 North Broadway, Hicksville NY 11801)
PCK Realty, Inc
(David Kritzer, Kritzer Law Group
180 East Main Street Suite 204
Smithtown NY 11787)
Russo Wrecking
(John Bieder, Traub Lieberman Strauss & Shrewsberry
7 Skyline Dr, Hawthorne NY 10532)
Carmen Victoria St. George, J.
Ho v PCK Realty Co. (Sup Ct, NY County, Index No 152652/2012)(PCK Realty) is the case currently before this Court. Greenwich Insurance Company is the defendant in another action, Ho v Greenwich Ins. Co. (Sup Ct, NY County, Index No 104998/2010)(Greenwich). The background is as follows: Ms. Ho is the executrix of the estate of Hing Duen Ho (Mr. Ho). Mr. Ho owned the building located at 105 East Broadway (the Building). During the period in question, Mr. Ho had a fire policy with Greenwich Insurance Company (Greenwich). On May 14, 2009, there was a major fire in a neighboring building, located at 109 East Broadway. The building collapsed the next day, destabilizing 107 East Broadway, with which Mr. Ho's building shared a common wall. Pursuant to an emergency order, the building at 107 East Broadway was demolished. This demolition, in turn, destabilized Mr. Ho's building, and another emergency order directed that this building be braced. Plaintiff alleges that this resulted in over $1,000,000 in expenses.
Mr. Ho filed a claim for the damages he incurred, and Greenwich denied coverage, stating that the damages were not the direct result of the fire at 109 East Broadway. As a result, in 2010, plaintiff instituted the Greenwich action, alleging that the denial of coverage lacked merit and was made in bad faith. In addition, two years later, plaintiff commenced the PCK Realty action, which is the case before this Court. The PCK Realty action asserts that it was the negligence of PCK Realty and Hong Kong Supermarket, both at 109 East Broadway, that caused the fire and the resulting damage to the Building. The action also asserts that A & M East Broadway was negligent in the demolition work in that it did not take measures to brace plaintiff's building, and that this negligence exacerbated the damage.
Currently, Greenwich has moved to consolidate and intervene in PCK Realty as a plaintiff. Plaintiff has separate counsel in the current action and the Greenwich action; both of plaintiff's attorneys have opposed the motion. The other parties have not filed papers in support of or opposition to this motion. The motion was argued before Justice Lucy Billings, who previously presided over the case, and also before this Court. At oral argument, this Court stated, with the consent of all parties, that it would consider not only the arguments made on the record (Transcript 2), but those asserted before Justice Billings (Transcript 1) and the relevant case law.
Greenwich argues that intervention is proper under CPLR § 1013 because both lawsuits [*2]arise from the same set of underlying facts and involve common questions of law. Greenwich contends that the facts of the fire and collapse of 109 East Broadway, the damage to and demolition of 107 East Broadway, and the resulting cost to the Building are at issue in both cases. The legal issues in both cases, they state, refer to the cause of the damage to the Building and to the cost of bracing the Building. Furthermore, Greenwich contends that intervention will not "unduly delay the determination of [this] action or prejudice the substantial rights of any party" (CPLR § 1013). Instead, it argues, plaintiff has caused prejudice to Greenwich because, as there are two actions, Greenwich lacks access to the discovery the parties have exchanged in PCK Realty.
The Court herein denies intervention. "The right to equitable subrogation accrues when an insurer can establish that it has paid for losses sustained by its insured that were occasioned by a wrongdoer" (Millennium Holdings LLC v Glidden Co., 146 AD3d 539, 544 [1st Dept 2017] [citations and internal quotation marks omitted]). Until an insurer pays the claim, the right of subrogation does not exist (Winkelmann v Excelsior Ins. Co., 85 NY2d 577. 582 [1995]). Therefore, there is no right to intervene. She notes that Greenwich denied her claim for insurance coverage, and that this would complicate its position as a co-plaintiff with the insured whose claim it denied. The Court is persuaded by plaintiff's argument that jury confusion may result if the jury must decide coverage as well as causation and liability. The core issue in Greenwich is whether Greenwich wrongfully denied an insurance claim, while the core issue in PCK Realty is who is liable for the damages plaintiff has sustained. As this Court stated at oral argument, "The confusion to the jury is paramount in this case" (Transcript 2, at p 19, ll 6-7; see Simoni v Costigan, 100 AD3d 531, 531 [1st Dept 2012] [denying consolidation for trial purposes despite common legal and factual issues because of the potential for jury confusion and for prejudice]).
To the extent that Greenwich seeks to intervene because a direct action against the alleged tortfeasors would be untimely, its argument is not persuasive. Justice Billings asked at argument whether Greenwich's untimeliness is a valid basis for consolidation or intervention, and Greenwich did not provide any support for its position. Instead, it spoke of its contingent subrogation rights — an issue it addresses in its reply papers. This right, however, relates to its ability to sue in a timely fashion. None of the cases to which Greenwich cites for support of this argument involves a statute of limitations challenge.
Greenwich has made a stronger case for its alternative request, that the cases be consolidated, at least for discovery purposes (Transcript 1, p 18, ll 3-9). One of Greenwich's main arguments in favor of consolidation is that it is being prejudiced by its inability to access all of the discovery. For one thing, the parties agreed at oral argument that they would allow Greenwich to participate in the depositions that take place in PCK Realty (Transcript 1, p 14, ll 17-23), and plaintiff represented to this Court that she had provided Greenwich with the discovery the parties had exchanged in PCK Realty to Greenwich, and to the extent that she had not done so she would supplement her prior production (Transcript 2, p 8, ll 3-8; p 16, ll 19-22). Thus, the parties have agreed to an informal consolidation for discovery purposes. A more formal consolidation will provide Greenwich with the legal right to seek the necessary discovery. Finally, plaintiff's argument that consolidation for discovery purposes will delay the PCK Realty lawsuit unnecessarily is undercut by the representation of counsel for A. Russo Wrecking, a second- and third-party defendant in the instant case — which has no position concerning the resolution of Greenwich's motion —that extensive discovery is outstanding in PCK Realty (Transcript 2, p 15, ll 5-22; see also Transcript 1, p 18, ll 15-19 [plaintiff's counsel [*3]stated that discovery is almost done in PCK Realty, but conceded that "a number of other depositions" were outstanding]). Consolidation for trial purposes is not appropriate for the same reasons set forth above. Indeed, one of the cases Greenwich cites in support of its argument in favor of consolidation, Krause v American Guarantee & Liability Ins. Co. (22 NY2d 147, 153-54 [1968]), expressly noted that impleader would not cause prejudice because "severances [and] separate trials . . . can be employed to avoid any possible prejudice."
Accordingly, it is
ORDERED that the motion is granted to the extent of joining the two actions for discovery purposes, and is otherwise denied; and it is further
ORDERED that all parties in this action and in Greenwich shall appear at the discovery conference on September 20, 2018. The Court notes that it expects the parties to have complied with the deadlines for discovery set forth in the June 28, 2018 status conference order.
Dated: July 30, 2018
ENTER:
____________________________________
CARMEN VICTORIA ST. GEORGE, J.S.C.
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