Opinion
Index No. 159047/2023 Motion Seq. No. 001
03-08-2024
CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Plaintiff, v. USIC LLC, USIC LOCATING SERVICES, LLC,VERIZON NEW YORK, INC., HYLAN DATACOM &ELECTRICAL, LLC, CABLEVISION SYSTEMS, CORP., WESTCHESTER JOINT WATER WORKS, ACCALC, INC. FORMERLY KNOWN AS PROTEK LOCATING, INC., TULLY CONSTRUCTION COMPANY, INC. Defendants.
Unpublished Opinion
MOTION DATE 01/25/2024
DECISION + ORDER ON MOTION
HON. DAKOTA D. RAMSEUR JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 36, 37, 38, 39, 41,45, 46, 47, 48 were read on this motion to/for DISMISSAL.
Plaintiff, Consolidated Edison Company of New York, Inc. (plaintiff), commenced this action for property damages to its underground cables and related equipment and facilities against defendants, USIC LLC, USIC Locating Services, LLC, Verizon New York, Inc., Hylan Datacom &Electrical, LLC (Hylan), Cablevision Systems, Corp. (Cablevision), Westchester Joint Water Works, Accalc, Inc. f/k/a Protek Locating, Inc., and Tully Construction Company, Inc., stemming from four separate incidents involving plaintiffs property. Cablevision now moves pursuant to CPLR 602 to sever the four incidents into separate actions, pursuant to CPLR 325(d) to remand the actions to civil court, and pursuant to CPLR 3211(a)(7). Plaintiff cross moves pursuant to CPLR 3215 for a default judgment against Cablevision. Hylan cross-moves to sever the four actions and to dismiss the complaint and to remand the severed actions to civil court. Cablevision and plaintiff s motions are opposed. For the following reasons, Cablevision's motion is granted, plaintiffs motion is denied, and Hylan's motion is denied as moot.
Plaintiffs amended complaint alleges that it was injured as a result of four separate incidents. Incident 1 alleges property damage sustained on April 21, 2022 at "181 Highland Road, Rye, New York" due to the negligence of defendants USIC LLC, USIC Locating Services, LLC and Verizon New York, Inc., alleging damages in the amount of $5,268.13 (Incident 1). Incident 2 alleges property damages sustained on April 2, 2022, at "410 Park Avenue, Manhattan, New York" resulting from the negligence of USIC LLC., USIC Locating Services, LLC, Cablevision and Hylan, alleging damages in the amount of $111,400.98 (Incident 2). Incident 3 alleges property damage sustained on November 17, 2020, at "161 Columbus Avenue, West Harrison, New York" resulting from the negligence of USIC LLC, USIC Locating Services, LLC, Westchester Joint Water Works and ACCALC, Inc. f/k/a Protek Locating, Inc., alleging damages in the amount of $4,067.61 (Incident 3). Incident 4 alleges property damage allegedly sustained on September 18, 2020, at "2200 Grand Concourse Boulevard, Bronx, New York" due to the negligence of USIC, LLC, USIC Locating Services, LLC, Cablevision and Hylan, alleging damages in the amount of $12,821 (Incident 4)
Default judgment
In support of the branch of plaintiffs motion for a default judgment, plaitniff contends that Cablevision failed to appear in this action until it filed its motion, some four months after plaitniff served the commencement papers upon it. In opposition, Cablevision argues that it did not receive notice of the summons and complaint until plaintiff sent a letter concerning Cablevision's failure to answer the complaint.
CPLR 3215(f) requires a movant seeking default judgment to submit the following proofs: (1) proof of service of the summons and complaint or summons with notice; (2) an affidavit of the facts constituting the claim; and (3) an affidavit showing the default in answering or appearing. Here, plaintiff fails to establish its entitlement to a default judgment against Cablevision First, plaitniff fails to demonstrate service of the purported amended summons and complaint upon Cablevision Moreover, it is well settled that CPLR § 3215 "does not contemplate that default judgments are to be rubber-stamped once jurisdiction and a failure to appear have been shown Some proof of liability is also required to satisfy the court as to the prima facie validity of the uncontested cause of action" (Guzelli v City of New York, 32 A.D.3d 234, 235 [1st Dept 2006] [McGuire, J, concurring], quoting Joosten v Gale, 129 A.D.2d 531, 535 [1st Dept 1987]). Here, plaitniff does not submit an affidavit of merit establishing the facts underpinning his claims. Further plaintiffs verified complaint and affirmation by movant's counsel are insufficient to support the entry of default judgment (see Joosten, 129 A.D.2d at 535 [1st Dept 1987] ["plaintiff was not entitled to a default judgment since, as noted, an attorney's verification not made on personal knowledge cannot be used for purposes of obtaining a default judgment"]). Accordingly, the motion for a default judgment is denied.
Sever
CPLR 603 authorizes courts to sever claims or to order a separate trial of any claim and/or any separate issue "in furtherance of convenience or to avoid prejudice." severance should be denied, where the actions involve common factual and legal issues, and the interest of judicial economy and consistency of verdicts will be served by a single trial (see New York Central Mutual Insurance Company v John McGee, 87 A.D.3d 622 [2d Dept 2011]). "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" (Zili v City of N.Y., 105 A.D.3d 949 [2013]).
Here, Cablevision establishes its entitlement to severance of this action into four separate actions. Cablevision demonstrates, and plaintiff does not refute, that each incident alleged in the complaint alleges a distinct factual occurrence at a distinct geographical location that are unrelated to one another. Further, out of the four incidents alleged, only Incident 2 and Incident 4 include the identical defendants, which would likely create confusion for the trier of fact. As plaintiffs action is seeking to recover for property damage arising from four separate incidents in four separate locations, with four separate causes and involving different defendants, Cablevision's motion to sever this action into four separate actions is granted.
As Cablevision's motion to sever this action is granted, Hylan's motion for the same relief is denied as moot.
Failure to state a claim
Cablevision's affidavit in support of its motion indicates that it is also moving pursuant to CPLR 3211 (a)(7) to dismiss the complaint. However, the body of plaintiffs motion does not contain any substantive argument supporting its augment to dismiss. Accordingly, the branch of Cablevision's motion to dismiss is denied.
Remand to the Civil Court
Pursuant to CPLR 325(d), the court "[m]ay, in its discretion remove [an] action without consent to [a] lower court where it appears that the amount of damages sustained may be less than demanded, and the lower court would have jurisdiction but for the amount of damages demanded" (see also 22NYCRR 202.13[a]). The decision to grant or deny the motion is within the trial court's discretion (see Genson v Sixty Sutton Corp., 74 A.D.3d 560, 560 [1st Dept 2010]). Here, plaintiff concedes in its affirmation in opposition to Hylan's cross-motion that Incident 1, Incident 3, and Incident 4 should be transferred to the Civil Court. However, the court denies the branch of Cablevision's motion to transfer this matter to the Civil Court, with leave to renew upon the completion of discovery.
Accordingly, it is hereby, ORDERED that Cablevision's motion is granted to the extent that the branch of its motion pursuant to CPLR 602 to sever this action into four separate actions is granted, and this matter shall be severed into four separate actions based on the four separate incidents alleged in the complaint identified herein as Incident 1, Incident 2, Incident 3, and Incident 4; and it is further
ORDERED that plaintiff serve a copy of this order with notice of entry on the Clerk of this Court (60 Centre Street, Room 141B); and it is further
ORDERED that the Clerk of this Court, upon service of a copy of this order with notice of entry, shall sever the actions and record such action in the Clerk's records; and it is further
ORDERED that, within 30 days from entry of this order, counsel for the Cablevision shall serve a copy of this order with notice of entry upon the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further
ORDERED that upon the service of such documents, the Clerk of the General Clerk's Office shall mark the court's records to reflect the separate actions in Part 34; and it is further
ORDERED that service upon the Clerk of this Court and the Clerk of the General Clerk's Office shall be made in hard-copy form if the application herein has been made in hard-copy format or, if the application has been electronically filed, 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 "E-Filing" page on this court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that plaintiffs cross-motion pursuant to CPLR 3215 for a default judgment is denied; and it is further
ORDERED that Hylan's motion is denied as moot; and it is further
ORDERED that plaintiff shall serve a copy of this decision and order upon all parties, with notice of entry, within ten (10) days of entry, with notice of entry.
This constitutes the decision and order of the Court.