Opinion
10317/07.
Decided September 8, 2009.
Steven Krentsel, Esq., Krentsel Guzman, LLP, NY, NY, Plaintiff.
Adam Roth, Esq., Krentsel Guzman, LLP, NY, NY, Plaintiff.
Our Lady of Pompei School, Christopher Delamere Clarke, Esq., Leahey Johnson, PC, NY, NY, Hon. Gabriel M. Krausman (Ret. Justice Supreme Court), Leahy Johnson, PC, NY, NY, Garrity Graham Murphy, Montclair NJ, Atty Third Party Defendant, Heidell Pittoni Murphy Bach, LLP, NY, NY, Atty Third Party Def, Defendant.
The above-captioned matter was referred to my Part, Part 27, for trial on July 6, 2009 by the Hon. Donald S. Kurtz of the Jury Coordinating Part (JCP). I was immediately confronted with eight orders to show cause/motions in limine in this action, respectively Motion Sequence Numbers (MS No.) 11, 15, 16, 17, 18, 19, 20, 21. After hearing oral argument by all parties, I granted the cross-motion (MS # 20) of defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH (collectively OLP) to adjourn the trial date to September 21, 2009, with jury selection commencing on September 16, 2009, as per my July 6, 2009 short-form order. Then, I reserved decision on the other seven orders to show cause/motions in limine.
The seven reserved orders to show cause/motions in limine are:
MS # 11 — order to show cause of defendants/third-party plaintiffs OLP, pursuant to CPLR § 3101 (d), to strike plaintiff GERARD BOEKE's (BOEKE) expert disclosure, preclude the testimony of plaintiff BOEKE's experts Drs. Brian Hainline, Richard Schuster, Jonathan Silver and Fred Goldman as untimely and to preclude any reference at trial to "complex regional pain syndrome;
MS # 15 — order to show cause of plaintiff BOEKE to sever, pursuant to CPLR § 603 and Rule 1010, the action by defendants/third-party plaintiffs OLP against third-party defendants LAITH M. JAZRAWI, M.D. (JAZRAWI), NYU HOSPITAL FOR JOINT DISEASES and NYU LANGONE MEDICAL CENTER (collectively NYU);
MS #16 — cross-motion of third-party defendants JAZRAWI and NYU, pursuant to CPLR Rule 1010, to dismiss the third-party action against them by defendants/third-party plaintiffs OLP, or in the alternative to sever the third-party action, pursuant to CPLR § 603; MS #17 — motion by defendant MARTINEZ CLEANING COMPANY, INC. (MARTINEZ), pursuant to CPLR Rule 3211, to dismiss the cross-claims against it by defendants/third-party plaintiffs OLP and/or grant summary judgment, pursuant to CPLR Rule 3212, to defendant MARTINEZ on the cross-claims of defendants/third-party plaintiffs OLP against defendant MARTINEZ;
MS# 18 — motion of defendants/third-party plaintiffs OLP, pursuant to CPLR Rules 3325 and 4533-b, to grant defendants/third-party plaintiffs OLP leave to amend their answer to include an affirmative defense of release and payment, pursuant to CPLR § 3018;
MS# 19 — motion by third-party defendants JAZRAWI and NYU to grant a protective order, pursuant to CPLR § 3103, against defendants/ third-party plaintiffs OLP's notices to take depositions of third-party defendants JAZRAWI and NYU; and,
MS #21 — cross-motion by defendants/third-party plaintiffs OLP, pursuant to CPLR § 3126, to strike the answers of third-party defendants JAZRAWI and NYU, for failing to appear for noticed depositions.
After hearing oral argument on July 6, 2009 and reviewing all submitted papers, the following is the Court's decision and order with respect to the seven reserved orders to show cause/motions in limine.
Further, after reviewing my calendar, I am amending my July 6, 2006 short-form order with respect to the date for jury selection and the adjournment of the trial. Jury selection will now commence one day later, on Thursday, September 17, 2009, in Part 27, Room 479, at 10:00 A.M., if the settlement conference should prove unproductive.
Motion Sequence #'s 15 and # 16MS #'s 15 and 16 are related. CPLR Rule 1010 allows a Court to order a separate trial of a third-party claim and "[i]n 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." Further, CPLR § 603 allows the Court to order severance "to avoid prejudice." In this matter, the main action is a premises liability negligence case. The third-party action, sounding primarily in medical malpractice, was not commenced until May 5, 2009, fourteen months after plaintiff filed his note of issue, and while the main action was on the JCP calendar for jury selection. While there are some common questions of law and fact, it is clear that if the jury has to consider a premises liability action with a medical malpractice action, the jury might become confused.
The trial of the main action for premises liability has distinct questions with respect to liability and damages. It should be bifurcated. The third-part action, sounding in medical malpractice, should be unified because the nature of plaintiff's alleged injuries is inextricably intertwined with the question of liability. The Appellate Division, Second Department supports bifurcated trials when "questions of liability and damages in a negligence action represent distinct and severable issues which should be tried and determined separately." ( Berman v County of Suffolk , 26 AD3d 307 , 308 [2d Dept 2006]). "Courts are encouraged to conduct bifurcated trials in personal injury actions" ( Bertelle v New York City Transit Authority, 19 AD3d 343, 344 [2d Dept 2005]). The Berman Court added, at 308, that "[i]t is only where the nature of the injuries has an important bearing on the issue of liability that a joint trial of both issues is permitted." Further, the Hon. Gabriel M. Krausman, OLP's special counsel, who submitted the affirmation in opposition to plaintiff BOEKE's motion to sever, served on the unanimous Berman panel, which held that bifurcation is appropriate. This Court is not going to unify the main premises liability action because OLP has chosen at a late date to implead the medical malpractice action.
Also, OLP's tardiness in commencing the third-party action is prejudicial to plaintiff because it delays trial of the main action. In Todd v Gull Contracting Company ( 22 AD2d 904 [2d Dept 1964], the Court held that "[w]e find no abuse of discretion in the severance of the third-party action from the main action, in view of the tardiness of the institution of the third-party action and the resultant delay and prejudice both to the plaintiff and to the third-party defendant." In Zuckerman v La Guardia Hospital ( 125 AD2d 304 [2d Dept 1986]), a third-party action was commenced approximately eighteen months after plaintiff filed the note of issue. The Court upheld severance of the third-party action, holding that "it would be unfair to require the third-party defendant to proceed to trial without an adequate opportunity to complete pretrial disclosure" and "there is a possibility of prejudice to the plaintiff in the main action if further delay is permitted to complete discovery in the third-party action." Severance is appropriate in the instant action to avoid prejudice to the substantial rights of plaintiff and third-party defendants, because plaintiff is ready to proceed to trial and discovery has yet to
commence for third-party defendants. ( Singh v City of New York, 294 AD2d 422 [2d Dept 2002]). OLP's special counsel, the Hon. Gabriel Krausman, served as a member of appellate benches that upheld the severance in appropriate cases of third-party actions from main actions. ( Mukhailova v Kings Plaza and Vornado Realty Trust , 26 AD3d 420 [2d Dept 2006]; Emmetsberger v Mitchell , 7 AD3d 483 [2d Dept 2004]; Emanuel v Broadway Mall Properties, Inc., 293 AD2d 708 [2d Dept 2002]).
The severance of the premises liability main action from the medical malpractice third-party action will properly allow third-party defendants JAZRAWI and NYU to complete discovery and not delay plaintiff BOEKE from trying the main action.
Motion Sequence # 11
MS # 11, the order to show cause of defendants/third-party plaintiffs OLP, pursuant to CPLR § 3101 (d), to strike plaintiff BOEKE's expert disclosure, preclude the testimony of plaintiff BOEKE's experts Drs. Brian Hainline, Richard Schuster, Jonathan Silver and Fred Goldman as untimely and to preclude any reference at trial to "complex regional pain syndrome," is denied.
Plaintiff BOEKE's expert exchange took place either prior to the March 4, 2008 note of issue filing or subsequent to that date. The last expert exchange, for Dr. Hainline, took place on July 21, 2008, more than one year ago. Therefore, these expert exchanges are timely, gave defendants/third-party plaintiffs OLP adequate notice to prepare for trial and are not prejudicial to OLP. "CPLR § 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information at any specific time" and does not mandate precluding expert testimony for statutory noncompliance "unless there is evidence of an intentional or willful failure to disclose, and a showing of prejudice to the opposing party." ( Blade v Town of North Hempstead, 277 AD2d 268 [2d Dept 2000]). Justice Krausman was a member of the unanimous Blade appellate panel. In Shopsin v Siben Siben ( 289 AD2d 220 [2d Dept 2001]), a unanimous appellate panel, with Justice Krausman as the Presiding Justice, reversed a Supreme Court, Suffolk County decision that precluded plaintiff from offering the testimony of two expert witnesses due to delay in complying with CPLR § 3101 (d) (1) (i). The Court held that in this action, "there is no evidence that the plaintiff's delay in retaining expert witnesses and serving an expert witness notice was willful or intentional, and any potential prejudice to the defendants could have been alleviated by granting an adjournment. Under these circumstances, the court should not have precluded the plaintiff's witnesses from testifying."
With respect to precluding the use of the term "complex regional pain syndrome" by plaintiff's experts, defendants OLP had notice in plaintiff's October 16, 2007-supplemental bill of particulars that plaintiff suffered from "lacerated arteries and its sequelae," "neurological difficulties," and injuries that "are permanent and lifelong." The
reports of Dr. Silver and Dr. Hainline refer to "complex regional pain syndrome" and defendants questioned plaintiff about this in his third deposition, on June 2, 2008. Therefore, plaintiff's experts are not precluded at trial from discussing "complex regional pain syndrome."
Motion Sequence # 17
This motion, by defendant MARTINEZ, pursuant to CPLR Rule 3211, to dismiss the cross-claims against it by defendants/third-party plaintiffs OLP and/or grant MARTINEZ summary judgment, pursuant to CPLR Rule 3212, on the cross-claims of defendants/third-party plaintiffs OLP is denied. Despite cloaking itself as a CPLR Rule 3211 motion to dismiss, the instant motion is actually a CPLR Rule 3212 motion to dismiss. It is not only untimely, in violation of CPLR Rule 3212 (a) and Kings County Supreme Court Uniform Civil Term Rule 13, but was previously denied by Justice Part now in a December 23, 2008 short-form order.
CPLR Rule 3212 (a) states:
Time; kind of action. Any party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made , such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue , except with leave of court on good cause shown . [ Emphasis added ]
Kings County Supreme Court Uniform Civil Term Rule 13 states, "Post Note of Issue Summary Judgment Motions: No motion for summary judgment may be made more than 60 days after filing a Note of Issue , except with leave of Court on good cause shown. See CPLR 3212 (a)." [ Emphasis added].
In the instant tort action, the note of issue was filed with the Kings County Clerk on March 10, 2008. Defendant MARTINEZ made the instant motion on June 11, 2009, 458 days after the Note of Issue was filed. Defendant MARTINEZ did not seek leave of the Court for an extension of time to make the instant summary judgment motion and its moving papers fail to show good cause for an extension of time to make the instant summary judgment motion. ( First Union Auto Finance, Inc. v Donat , 16 AD3d 372 [2d Dept 2005]; Bevilacqua v City of New York , 21 AD3d 340 [2d Dept 2005]; Giordano v CSC Holdings, Inc. , 29 AD3d 948 [2d Dept 2006]; Davidson v Brisman , 40 AD3d 574 [2d Dept 2007]; McNally v Beva Cab Corp. , 45 AD3d 820 [2d Dept 2007]; Kennedy v Bae , 51 AD3d 980 [2d Dept 2008]; Finger v Saal , 56 AD3d 606 [2d Dept 2008]).
Defendant MARTINEZ is granted leave to renew that branch of the instant motion dealing with indemnification issues at the conclusion of the trial.
Motion Sequence # 18
The motion by defendants/third-party plaintiffs OLP, pursuant to CPLR Rules 3325 and 4533-b, for leave to amend their answer to include an affirmative defense of release and payment, pursuant to CPLR § 3018, is granted.
OLP, in its November 14, 2009 answer to the amended verified complaint, included a third affirmative defense, that "[i]n the event that a settlement occurs all of the provisions of General Obligations Law 15-108 are applicable." Defendant MARTINEZ, in June 2009, settled with plaintiff BOEKE for $400,000.00. Several days later, defendants/third-party plaintiffs OLP made the instant motion for leave to amend their answer to add a tenth affirmative defense based upon "release and payment." The twenty-day period, pursuant to CPLR Rule 3025 (a), for a party to amend its pleadings without leave of the Court is long past. OLP's proposed tenth affirmative defense states that "[u]pon settlement by any party, the answering defendants are entitled to a reduction of any verdict or judgment based upon the release and payment and by any party, not withstanding, and in fact wholly reserving, any and all rights that Defendants also have under General Obligations Law 15-108." Allowing defendants/third-party plaintiffs OLP to amend its answer, pursuant to CPLR Rule 3025 (b) will not prejudice any of the parties and there is a meritorious basis for OLP to assert this affirmative defense.
"Leave to amend pleadings should be freely given' (CPLR 3025 [b]). The decision to allow or disallow the amendment is committed to the court's discretion." ( Edenwald Const. Co. v City of New York, 60 NY2d 957, 959). ( See Thomas Crimmins Contracting Co., Inc. v City of New York, 74 NY2d 166, 170). The Appellate Division, Second Department held in both Trataros Construction, Inc. v New York City School Construction Authority ( 46 AD3d 874 [2d Dept 2007]) and G.K. Alan Assoc., Inc. v Lazzari ( 44 AD3d 95 , 99 [2d Dept 2007] that "[i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit." It is clear in the instant matter that the proposed amended answer is not "palpably insufficient or patently devoid of merit." ( See Janssen v Village of Rockville Centre, 59 AD3d 15, 27 [2d Dept 2008]; Boakye-Yiadom v Roosevelt Union Free School District , 57 AD3d 929 , 931 [2d Dept 2008]; Thomsen v Suffolk County Police Dept. , 50 AD3d 1015 , 1017 [2d Dept 2008]).
Therefore, OLP's motion to amend its answer to include its proposed new tenth affirmative defense for "release and payment" is granted and deemed served nunc pro tunc upon all parties.
Motion Sequence # 19 and # 21
Both the motion by third-party defendants JAZRAWI and NYU to grant a protective order, pursuant to CPLR § 3103, against defendants/third-party plaintiffs OLP's notices to take depositions of third-party defendants JAZRAWI and NYU and the cross-motion by defendants/third-party plaintiffs OLP, pursuant to CPLR § 3126, to strike the answers of third-party defendants JAZRAWI and NYU, for failing to appear for noticed depositions are related. However, the severance of the third-party medical malpractice action from the premises liability main action renders both the motion and cross-motion premature. Both the instant motion and the instant cross-motion are denied without prejudice with leave to renew, if after the parties agree at a preliminary conference to a discovery schedule and one of more of the parties fail to comply with a discovery stipulation or order with respect to the severed medical malpractice action.
Of course, if all parties can settle the instant action on September 17, 2009, before jury selection in the main action, the motion to issue a protective order for third-party defendants JAZRAWI and NYU and/or the cross-motion to strike the answer of third-party defendants JAZRAWI and NYU will be moot.
Conclusion
Accordingly, it is
ORDERED, that the order to show cause of plaintiff GERARD BOEKE (MS # 15) to sever the main action, Index No. 10317/07, pursuant to CPLR § 603 and Rule 1010, from defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH third-party action against third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER, Index No. 75426/09, is granted; and it is further
ORDERED, that the cross-motion of third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER (MS # 16), pursuant to CPLR Rule 1010, to dismiss the third-party action against them by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH or in the alternative to sever the third-party action, pursuant to CPLR § 603, is granted to the extent that the third-party action against them by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH, Index No. 75426/09, is severed, pursuant to CPLR § 603, from the main action, Index No. 10317/07, and that branch of the cross-motion seeking dismissal of the third-party action by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH, against third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER is denied; and it is further
ORDERED, that the order to show cause of defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH (MS # 11), pursuant to CPLR § 3101 (d), to strike plaintiff GERARD BOEKE's expert disclosure, preclude the testimony of plaintiff GERARD BOEKE's experts Drs. Brian Hainline, Richard Schuster, Jonathan Silver and Fred Goldman as untimely and to preclude any reference at trial to "complex regional pain syndrome," is denied; and it is further
ORDERED, that the motion by defendant MARTINEZ CLEANING COMPANY, INC. (MS # 17), pursuant to CPLR Rule 3211, to dismiss the cross-claims against it by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH and/or grant defendant MARTINEZ CLEANING COMPANY, INC. summary judgment, pursuant to CPLR Rule 3212, on the cross-claims of defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH is denied; and it is further
ORDERED, that the motion by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH (MS # 18), pursuant to CPLR Rules 3325 and 4533-b, for leave to amend their answer to include an affirmative defense of release and payment, pursuant to CPLR § 3018, is granted and deemed served nunc pro tunc upon all parties; and it is further
ORDERED, that the motion by third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER (MS # 19) to grant a protective order, pursuant to CPLR § 3103, against defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL's and OUR LADY OF POMPEI CHURCH's notices to take depositions of third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER is denied without prejudice for the movant to renew at an appropriate future time; and it is further
ORDERED, the cross-motion by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH (MS # 21), pursuant to CPLR § 3126, to strike the answers of third-party defendants LAITH M. JAZRAWI, M.D., NYU HOSPITAL FOR JOINT DISEASE and NYU MEDICAL CENTER, for failing to appear for noticed depositions is denied without prejudice for the movant to renew at an appropriate future time; and it is further
ORDERED, that my July 6, 2006 short-form order with respect to the adjournment of the trial, in granting the motion by defendants/third-party plaintiffs OUR LADY OF POMPEI SCHOOL and OUR LADY OF POMPEI CHURCH (MS # 20), is amended in that all parties will report on Thursday, September 17, 2009, in Part 27, Room 479, at 10:00 A.M., for a settlement conference, and if the settlement conference does not result in a settlement jury selection will commence forthwith.
This constitutes the Decision and Order of the Court.