Moeslein v Tong

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Moeslein v Tong 2022 NY Slip Op 33623(U) October 20, 2022 Supreme Court, New York County Docket Number: Index No. 450744/2021 Judge: Frank P. Nervo 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. INDEX NO. 450744/2021 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/20/2022 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. FRANK P. NERVO Justice ---------------------------------------------------------------------------------X EMILIE MOESLEIN, INDEX NO. MOTION DATE Plaintiff, 04 450744/2021 06/21/2022 002 MOTION SEQ. NO. -vDECISION + ORDER ON MOTION FRANCIS TONG, REVEL TRANSIT INC. Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99 were read on this motion to/for REARGUMENT/RECONSIDERATION . Plaintiff moves for reargument contending that the Court’s prior decision denying a stay of arbitration failed to consider claims asserted against codefendant Tong. Defendant Tong joins in plaintiff’s request. Defendant Revel Transit opposes contending that the Court’s denial was proper. The purpose of reargument is to provide “a party an opportunity to establish that the court overlooked or misapprehended relevant facts or misapplied principles of law” (Foley v. Roche, 68 AD2d 558, 567 [1st Dept 1979]; see CPLR § 2221[d][2]). “Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided” (id.). Nor is reargument a proper forum to present arguments different from 450744/2021 MOESLEIN, EMILIE vs. TONG, FRANCIS Motion No. 002 [* 1] Page 1 of 4 1 of 4 INDEX NO. 450744/2021 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/20/2022 those originally asserted (William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22 [1st Dept 1992] lv. dismissed in part and denied in part 80 NY2d 1005 [1992]). Where claims are inextricably intertwined, they generally should be heard in the same forum (see e.g. Young v. Jaffe, 282 AD2d 450 [2d Dept 2001]). Here, however, the claims are not inextricably intertwined (see e.g. All Metro Health Care Services, Inc., v. Edwards, 884 NYS2d 648 [Sup. Ct. NY County 2009] [Marcy S. Friedman, J.]). Although plaintiff alleges injuries from a single accident, plaintiff’s claims against each defendant are factually and legally distinct, and do not require single-forum adjudication. Plaintiff alleges, in essence, that defendant Tong caused her accident by negligently opening a car door. As against defendant Revel, plaintiff alleges, inter alia, that faulty brake maintenance caused her accident. Put simply, the determination of either issue is not dispositive on the other - i.e. a finding that brakes were improperly maintained by Revel Transit does not preclude a finding of liability against Tong and vice versa. Having assented to the arbitration agreement with Revel Transit, plaintiff is bound to arbitrate her claims against defendant Revel Transit. 450744/2021 MOESLEIN, EMILIE vs. TONG, FRANCIS Motion No. 002 [* 2] Page 2 of 4 2 of 4 INDEX NO. 450744/2021 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/20/2022 Assuming, arguendo, that the claims were inextricably interwoven, “where arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceedings pending completion of the arbitration” (County Glass & Metal Installers, Inc. v. Pavarini McGovern, LLC, 65 AD3d 940 [1st Dept 2009] [internal quotation omitted]; see also Brennan v. A.G. Becker, Inc., 127 AD2d 951 [3d Dept 1987] finding the Court could properly sever nonarbitrable causes of action from arbitral causes of action), and not, as plaintiff argues, stay arbitration pending judicial proceedings. Accordingly, it is ORDERED that leave to reargue is granted; and it is further ORDERED that upon reargument the motion is granted to the extent of directing that plaintiff’s claims against defendant Francis Tong be severed and continue and further directing that plaintiff’s claims against defendant Revel Transit proceed to arbitration; and it is further ORDERED that the Clerk of the Court shall mark the Court’s record to indicate that this matter is actively pending as against defendant Tong; and it further 450744/2021 MOESLEIN, EMILIE vs. TONG, FRANCIS Motion No. 002 [* 3] Page 3 of 4 3 of 4 INDEX NO. 450744/2021 NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 10/20/2022 ORDERED that counsel for plaintiff and defendant Tong shall confer and, within 20 days of this decision and order, file a proposed preliminary conference order via NYSCEF with courtesy copy to chambers (SFC-Part4Clerk@nycourts.gov or 80 Centre Street Courtroom 327 New York, NY 10013). Preliminary conference order forms are available on the Court’s website. Where agreement cannot be reached regarding discovery contained in the proposed preliminary conference order, counsel shall file, contemporaneously with the proposed order, a single joint letter outlining the dispute and the parties’ respective positions as to same. Failure to timely submit a proposed preliminary conference order or letter, as above, shall result in the Court issuing an order sua sponte, shall constitute waiver of any objection to same, and may result in the imposition of sanctions against the parties or counsel, in the Court’s discretion. THIS CONSTITUTES THE DECISION AND 10/20/2022 DATE CHECK ONE: OF THE COURT. $SIG$ HO CASE DISPOSED GRANTED • DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 450744/2021 MOESLEIN, EMILIE vs. TONG, FRANCIS Motion No. 002 [* 4] ORDER X NON-FINAL DISPOSITION X GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT OTHER • REFERENCE Page 4 of 4 4 of 4

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