Opinion
Index Nos. 158337/2020 595125/2022 595252/2023 Motion Seq. No. 003
06-13-2024
HOWARD MOORE, Plaintiff, v. DMD CONTRACTING NY LLC A/K/A DMD CONTRACTING LLC,STV CONSTRUCTION, INC..NEW YORK CITY HOUSING AUTHORITY, Defendant. DMD CONTRACTING NY LLC A/K/A DMD CONTRACTING LLC, STV CONSTRUCTION, INC., NEW YORK CITY HOUSING AUTHORITY Plaintiff, v. SAFETY DYNAMICS, LLC Defendant. DMD CONTRACTING NY LLC A/K/A DMD CONTRACTING LLC, STV CONSTRUCTION, INC., NEW YORK CITY HOUSING AUTHORITY Plaintiff, v. MEDCO ELECTRIC INC. Defendant.
Unpublished Opinion
MOTION DATE 01/13/2024
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO, J.S.C.
The following e-filed documents, listed by NYSCEF document number (Motion 003) 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 101, 102, 103, 113, 161, 169 were read on this motion to/for SEVER ACTION
Upon the foregoing documents, and after oral argument, which took place on October 24, 2023 with Jesse M. Mine, Esq. appearing for Plaintiff Howard Moore ("Plaintiff'), Kelly A. McGee, Esq. appearing for Defendants/Third-Party Plaintiffs/Second Third-Party Plaintiffs DMD Contracting NY LLC a/k/a DMD Contracting LLC ("DMD"), STV Construction, Inc. ("STV") and New York City Housing Authority ("NYCHA"), Eduardo Maffia, Esq. appearing for Third-Party Defendant Safety Dynamics, LLC ("Safety Dynamics"), and Brian F. Mark, Esq. appearing for second third-party defendant Medco Electric Inc. ("Medco"), Medco's motion to sever is granted.
A. Factual and Procedural Background
For a more thorough recitation of the facts giving rise to this claim, the reader is directed to the Court's Decision and Order on Motion Sequence 002. For the purposes of this motion, the following procedural history is relevant. This case was commenced on October 8, 2020 (NYSCEF Doc. 1). The Court's April 26, 2021 Preliminary Conference Order required impleader to be completed within 60 days of the completion of party depositions (NYSCEF Doc. 9). The Note of Issue was originally filed on February 16, 2023 (NYSCEF Doc. 28). Medco was not impleaded via Third-Party Complaint until March 20, 2023 (NYSCEF Doc. 74). The Third-Party Action was filed by DMD, STV and NYCHA and asserted claims for contribution, common law indemnification, contractual indemnification, and failure to procure insurance coverage.
Medco argues severance is appropriate here as discovery is largely complete, impleader took place in contravention of the Court's case management orders, and the Defendants provided I no excuse as to why they waited so long to file the third-party complaint given they were in possession of sufficient information to implead Medco from the time they were served with Plaintiffs Complaint. Plaintiff joins in support of Medco's motion.
Third-Party Defendant Safety Dynamics opposes and argues that because the third-party action arises from the same nucleus of facts as the main action, the two should be tried together. The opposition is joined by DMD, STV, and NYCHA. These defendants point out that while the NYSCEF record reflects the Third-Party Complaint was filed post note of issue, an affidavit of service indicates the Third-Party Complaint was served prior to the note of issue on December 5, 2022 (NYSCEF Doc. 76). They argue that Medco is not prejudiced because they have been provided all discovery exchanged to date.
On reply, Medco argues that DMD, STV, and NYCHA have failed to provide any justification for waiting years to implead Medco despite knowing of its existence. Medco also argues that because service occurred prior to the filing of the Third-Party Complaint, the second third-party action against Medco was not properly commenced at the time of service.
B. Discussion
The Court finds Medco's motion meritorious and will grant severance. Pursuant to CPLR § 603, the court may order severance to avoid prejudice to a party. CPLR § 1010 likewise allows the Court, in an exercise of its discretion, to order a separate trial or dismiss a third-party complaint without prejudice if the third-party action will unduly delay the determination of the main action or prejudice the substantial rights of any party.
Here, the preliminary conference order clearly stated that impleader must take place within 60 days of party depositions. Moreover, all parties knew of Medco's existence and potential claims against Medco as Medco was identified as Plaintiffs employer in both his complaint which was filed on October 8, 2020, and 50-h hearing, which took place on September 11, 2020. Nonetheless, the third-party complaint was not filed until March 20, 2023, over a month after the note of issue was filed. The record is devoid of any reasonable justification for this delay and Medco is substantially prejudiced as it was not a party at the numerous fact depositions. This inexplicable delay, violation of Court orders, and prejudice to Medco warrants severance (Admiral Indemn. Co. v Popular Plumbing &Heating Corp., 127 A.D.3d 419 [1st Dept 2015]; Freeland v New York Communications Center Associates, 193 A.D.2d 511 [1st Dept 1993]).
The Court is also bound by on point precedent, which has held that severance is appropriate in a labor law action where a third-party action against the plaintiffs employer was brought (a) after the note of issue had been filed, and (b) more than two years after the defendants learned who the employer was (Lopez v Halletts Astoria, LLC, 205 A.D.3d 573 [1st Dept 2022]). Moreover, there is no possibility of inconsistent verdicts since Medco's liability for common law indemnification and contribution in the third-party action is contingent upon a finding that NYCHA and DMD are liable in the main action (Torres v Visto Realty Corp., 106 A.D.3d 645 [1st Dept 2013]).
The Court has considered the opposition and finds it to be without merit, in particular NYCHA and DMD's conclusory assertion that Medco faces no prejudice when it was absent from all depositions. Likewise, the opposition is devoid of any reasonable excuse for NYCHA and DMD's extensive delay in bringing their claims against Medco.
Accordingly, it is hereby, ORDERED that Medco Electric, Inc.'s motion seeking a severance of the second third-party claims against it is granted; and it is further
ORDERED that the second-third party action bearing index number 595252/2023 action is severed from Moore v DMD Contracting NY LLC, Index No. 158337/2020; and it is further
ORDERED that within ten days of entry, movant is directed to serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office within ten days from entry and the Clerk shall mark the action severed as to second-third party defendant Medco Electric, Inc.; and it is further
ORDERED that such service upon 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 "E-Filing" page on the court's website); 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 the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.