L.B. v City of New York

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L.B. v City of New York 2023 NY Slip Op 31668(U) May 17, 2023 Supreme Court, New York County Docket Number: Index No. 160793/2019 Judge: Judy H. Kim 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. 160793/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/17/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. JUDY H. KIM 05RCP Justice ----------------------------------------------------------------- ----------------X LB, a Minor Child by his Mother and Natural Guardian, TAIJA MALDONADO, INDEX NO. MOTION DATE MOTION SEQ. NO. Plaintiff, 160793/2019 02/01/2023 001 - V - THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF EDUCATION, and ESCUELA HISPANA MONTESSORI, DECISION + ORDER ON MOTION Defendants. ------------------------------------------------------------------- --------------X ESCUELA HISPANA MONTESSORI, Third-Party Index No. 595941/2022 Third-Party Plaintiff, -againstLAKESHORE LEARNING d/b/a LAKESHORE LEARNING STORE, Third-Party Defendant. -------------------------------------------------------------------------------- X The following e-filed documents, listed by NYSCEF document number (Motion 001) 21, 22, 23, 24, 25, 26,27,28,29, 30, 31 were read on this motion for DISMISS/SEVER Upon the foregoing papers, the motion by third-party defendant Lakeshore Leaming d/b/a Lakeshore Leaming Store ("Lakeshore") to sever the third-party action is granted on default and for the reasons set forth below. On November 6, 2019, plaintiff commenced this action alleging that on May 2, 2019, plaintiff L.B., an infant, sustained injuries when he tripped and fell in the "cozy comer" of a day care facility operated by defendant Escuela Hispana Montessori ("EHM") (NYSCEF Doc. No. 2 160793/2019 B, L vs. CITY OF NEW YORK Motion No. 001 [* 1] Page 1 of 5 1 of 5 INDEX NO. 160793/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/17/2023 [Amended Compl. at iJiJ9-10]). Discovery revealed that L.B. fell and injured his head against a piece of furniture in the cozy comer (NYSCEF Doc. No. 27 [Alacron EBT at pp. 27-28]). On November 28, 2022, Escuela commenced a third-party action against Lakeshore, which manufactures and sells the furniture in question, asserting claims sounding in products liability, breach of warranty, contribution, and indemnification (NYSCEF Doc. No. 29 [Third-Party Compl. at i]i]ll-24]). On January 11, 2023, Lakeshore interposed a third-party answer, asserting counterclaims against EHM for contribution, indemnification, and breach of contract (NYSCEF Doc. No. 15 [Answer at i]i]40-45]). Lakeshore's answer also included a crossclaim for indemnification against first-party defendants the City of New York and the New York City Department of Education (collectively, the "City") (Id. at i]46]). Lakeshore now moves, pursuant to CPLR §§603 and 1010, to dismiss the third-party action without prejudice or, alternatively, to sever the third-party action. In support of its motion, Lakeshore argues that the denial of its motion would result in prejudice to either itself or plaintiff. Specifically, Lakeshore asserts that it would be prejudiced if this matter proceed to trial prior to the completion of discovery in the third party action, as the majority of discovery in the main action took place prior to the commencement of the third-party action, precluding Lakeshore's involvement in same. Lakeshore adds that if the Court required the trial of this action to be held after the completion of discovery in the third-party action, the infant plaintiff would be prejudiced by the unnecessary delay in adjudicating his claim in the main action. Finally, Lakeshore argues that severance of the third-party action would not prejudice any party because EHM's third-party claims against it involve different issues of fact and law than those asserted in the main action. 160793/2019 B, L vs. CITY OF NEW YORK Motion No. 001 [* 2] Page 2 of 5 2 of 5 INDEX NO. 160793/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/17/2023 DISCUSSION CPLR §603 provides that, "[i]n furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue ... " (CPLR §603). CPLR §1010, which applies specifically to third-party actions, provides that The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just. In exercising its discretion, the court shall consider whether the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party. (CPLR §1010). Considering the foregoing, the Court concludes that severance of the third-party action is warranted. While both actions arise from the same facts, they involve disparate legal theories. Specifically, the third-party action's claims for breach of warranty, contribution, and indemnification do not "involve questions of fact similar to those in the main negligence action[]" (Shipsey v Katz, 58 AD2d 827, 827-828 [2d Dept 1977]; see also Gardner v City of New York, 102 AD2d 800 [1st Dept 1984]). "The former require[s] detailed testimony by expert witnesses, as well as complicated exhibits, delving into the make, construction and repair of the [subject furniture]" while the latter involves a determination as to whether defendants' negligence caused the infant plaintiff's injuries (Id.). In addition, the Court agrees that Lakeshore would be prejudiced in participating in the trial without first completing discovery in the third-party action, while plaintiff would be "substantially prejudiced by a long delay if compelled to await completion of disclosure in the [] third-party action, which was commenced more than two years after commencement of the main action" (Blechman v I.J. Peiser's & Sons, Inc., 186 AD2d 50, 51 [1st Dept 1992]). Finally, severance does not create a risk of inconsistent verdicts, as Lakeshore's 160793/2019 B, L vs. CITY OF NEW YORK Motion No. 001 [* 3] Page 3 of 5 3 of 5 INDEX NO. 160793/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/17/2023 liability for indemnification and contribution in the third-party action is contingent on a finding of liability against EHM in the main action (See Admiral Indem. Co. v Popular Plumbing & Heating ~ ' 127 AD3d 419 [1st Dept 2015]). Accordingly, Lakeshore's motion is granted and the thirdparty action is severed. As a result, Lakeshore's crossclaim against the City is converted into a third-party action in the severed action (See~' Jones v City of New York, 161 AD2d 518 [1st Dept 1990]). In light of the foregoing, it is ORDERED that Lakeshore Learning's motion for an order, pursuant to CPLR §1010, to sever or dismiss the third-party action is granted to the limited extent that the third-party action is severed from this action; and it is further ORDERED that the Clerk of the Court is directed to sever the third-party action from the main action, and the third-party action shall proceed as a separate action and the Clerk of the Court shall issue an index number to the severed third-party action upon the payment of the appropriate fees by Escuela Hispana Montessori; and it is further ORDERED that the crossclaims asserted by Lakeshore Learning against the City of New York and New York City Department of Education in the third-party action are hereby converted into third-party claims in the severed action; and it is further ORDERED that the caption of this severed action shall read SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------------- ----------- ---X ESCUELA HISP ANA MONTESSORI, Plaintiff, -againstLAKESHORE LEARNING d/b/a LAKESHORE LEARNING STORE, Defendants. 160793/2019 B, L vs. CITY OF NEW YORK Motion No. 001 [* 4] Page 4 of 5 4 of 5 INDEX NO. 160793/2019 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 05/17/2023 ---------------------------------------------- ------------------------------- --------------X LAKESHORE LEARNING d/b/a LAKESHORE LEARNING STORE, Third-Party Plaintiff, -againstTHE CITY OF NEW YORK and THE NEW YORK CITY DEPARTMENT OF EDUCATION Third-Party Defendants. ----------------------------------------------------------------------------- --------------X and it is further ORDERED that Lak:eshore Learning shall serve a copy of this order with notice of entry upon the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119) who shall mark their records to reflect the severance; and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "efiling" page on this court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of this Court. 5/17/2023 HON. JUDY H. KIM, J.S.C. DATE CHECK ONE: CASE DISPOSED GRANTED NON-FINAL DISPOSITION DENIED APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT OTHER REFERENCE Page 5 of 5 160793/2019 B, L vs. CITY OF NEW YORK Motion No. 001 [* 5] GRANTED IN PART 5 of 5

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