Opinion
Index No. 519320/2018
06-16-2020
KERMIT IRRIZARRY, Plaintiffs, v. PATRICIA ROSSELLI, JOSEPH PASSALACQUA &, J.R.M. CONSTRUCTION CORP., Defendants. PATRICIA ROSSELLI, Plaintiffs, v. JOSEPH PASSALACQUA, J.R.M. CONSTRUCTION CORP. ROSALIE PASSALACQUA, J&R SALALQUA CONTRACTING CO., INC. GARY ROSEN LAW FIRM P.C. and GARY ROSEN ESQ., Defendants.
Unpublished Opinion
PRESENT: HON. RICHARD VELASQUEZ Justice.
DECISION AND ORDER
RICHARD VELASQUEZES, J.S.C.
The following papers numbered 51 to 112 read on this motion: Papers Numbered
Notice of Motion/
Affidavits (Affirmations) Memorandum Annexed ___51-54; 63-69
Opposing Affidavits (Affirmations) ___79-89; 92; 93
Reply Affidavits (Affirmations) ___94; 96-102; 103-110, 112
After oral argument held on May 22, 2020 and a review of the submissions herein, the Court finds as follows:
Third-party Defendants, GARY ROSEN LAW FIRM P.C. and GARY ROSEN ESQ., pursuant to 3211 to dismiss the third-party complaint. Third Party plaintiff opposes the same. (MS#3)
Defendant/Third-party defendants JRM CONSTRUCTION CORP move to sever Third-party plaintiff causes of action. Third Party plaintiff opposes the same. (MS#4).
ANALYSIS
Pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481,484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970). "The criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one" (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17; Rovello v. Orofino Realty Co., 40 N.Y.2d at 636, 389 N.Y.S.2d 314, 357 N.E.2d 970). "[B]are legal conclusions and factual claims which are flatly contradicted by the evidence are not presumed to be true on such a motion" (Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401). If the documentary proof disproves an essential allegation of the complaint, dismissal pursuant to CPLR 3211(a)(7) is warranted even if the allegations, standing alone, could withstand a motion to dismiss for failure to state a cause of action (see McGuire v. Sterling Doubleday Enters., LP, 19 A.D.3d 660, 661, 799 N.Y.S.2d 65). "Whether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims ... plays no part in the determination of a pre-discovery 3211 [a][7] motion to dismiss" (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38; see EBC I, Inc. v. Goldman Sachs &Co., 5 N.Y.3d 11, 832 N.E.2d 26, 799 N.Y.S.2d 170 (Ct of Appeal 2005; Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17 (1977).
In the present case accepting the facts as alleged in the complaint as true, according third-party plaintiffs the benefit of every possible favorable inference, this court finds that they have alleged facts sufficient to state a cause of action for common law indemnification; slander of title; and quiet title, especially at this pre-answer pre-discovery stage of the litigation. Additionally, third-party defendant has not provided a single piece of documentary evidence to support their assertions. Additionally, an indemnity claim arises only when the party seeking indemnity makes payment. CPLR 213(2). As the claim is still ongoing and no payments have yet been made, third-party defendant ROSEN cannot claim that third-party plaintiff' claim for common law indemnity is time barred. Additionally, third-party plaintiff alleged in the third party complaint that the third-party defendant wrongfully filed documentation which casts a cloud upon defendant/third-party plaintiff title to or interest in Lot 26 giving rise to an action for slander of title and quiet title. Additionally, numerous factual issues exist in which no documentation submitted resolves. Therefore, Third-party defendant ROSEN motion to dismiss is hereby denied
Next addressing third-party defendant's JRM CONSTRUCTION CORP motion to sever third party plaintiffs action is hereby denied. 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." "The determination to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking the severance" (Naylor v. Knoll Farms of Suffolk County, Inc., 31 A.D.3d 726, 727, 818 N.Y.S.2d 460; see Mothersil v. Town Sports Infl., 24 A.D.3d 424, 425, 804 N.Y.S.2d 687).
Although underlying complaint is regarding premises liability it is imperative that the owner of the property is ascertained. In the underlying action plaintiff, Kermit Irizarry claims to have been injured on property located at 758 East 98th Street, Brooklyn, New York. Ownership of that same property is at issue in the third-party action. In the present case, there are common factual and legal issues involved in the action and the third-party action, and the interests of judicial economy and consistency of verdicts will be served by having a single trial (see Naylor v. Knoll Farms of Suffolk County, Inc., 31 A.D.3d at 727, 818 N.Y.S.2d 460). Furthermore, third party defendant JRM Construction Corp, failed to establish that a single trial would result in it suffering prejudice to a substantial right, or that any such prejudice could not be mitigated by the trial court with the appropriate jury instructions (see Zill v. City of New York, 105 A.D.3d 949, 950, 963 N.Y.S.2d 684; Chiarello v. Rio, 101 A.D.3d 793, 797, 957 N.Y.S.2d 133; Bentoria Holdings, Inc. v. Travelers Indem. Co., 84 A.D.3d 1135, 1137, 925 N.Y.S.2d 516, revd. on other grounds 20 N.Y.3d 65, 956 N.Y.S.2d 456, 980 N.E.2d 504; Mothersil v. Town Sports Inti, 24 A.D.3d at 425, 804 N.Y.S.2d 687; accord Hanover Ins. Group v. Mezansky, 105 A.D.3d 1000, 1001, 964 N.Y.S.2d 201); Quoting, Sumi Chuang Yeh v. Leonardo, 134 A.D.3d 695, 696, 20 N.Y.S.3d 561,563 (2 dep't 2015).
Accordingly, Third-party Defendants, GARY ROSEN LAW FIRM P.C. and GARY ROSEN ESQ., pursuant to 3211 to dismiss the third-party complaint is hereby denied for the reasons stated above. (MS#3). Defendant/Third-party defendants JRM CONSTRUCTION CORP move to sever Third-party plaintiff causes of actionis hereby denied for the reasons stated above. (MS#4).
This constitutes the Decision/Order of the Court.