Opinion
No. 67063/2016 Index No: 67063/2016
04-18-2019
DEVAN MULVANEY, as Executor of the Estate of DONALD MULVANEY, deceased, as Executor of the Estate of LEDELL MULVANEY, deceased, and as Administrator of the Estate of KATHERINE MULVANEY, deceased, Plaintiff, v. COUNTY OF WESTCHESTER and TOWN OF YORKTOWN, Defendants Town of Yorktown, Third-Patty Plaintiff, v. Empress Ambulance Service, Inc., Third-Patty Defendant
Unpublished Opinion
MOTION DECISION
PRESENT: HON. SAM D. WALKER, J.S.C.
DECISION AND ORDER
The following papers were reviewed on the third-party defendant's motion seeking an order pursuant to CPLR 1010, CPLR603, CPLR 3101 and CPL, R 3042; dismissing the third-party complaint; or severing the third-party action from the main action; and for additional time to conduct discovery:
Notice of Motion/Affirmation/Exhibit A-L 1-14
Affirmation in Opposition/Exhibits A-D 15-19
Based on the foregoing papers the motion is denied.
Factual and Procedural Background
The plaintiff commenced this action on November 14, 2016, to recover for personal, injuries and the wrongful deaths of his father, mother and sister, Donald, Ledell and Katherine Mulvaney, as a result of a vehicular accident which occurred on August 15, 2015.
The Town of Yorktown (the "Town") filed a third-party summons and complaint on November 17, 2017, against the third-party defendant, Empress Ambulance Service, Inc. ("Empress").
Empress now files the instant motion seeking to dismiss the third-patty complaint or severing the third-patty action from the main action and for additional time to conduct discovery. Empress argues that it appeared in July 2018 for the first time at a compliance conference and was burdened with the task of conducting extensive discovery in an abbreviated period of time. Empress states that it appeared at seyeral more compliance conferences and at the November 14, 2018 compliance conference, the Court Attorney Referee directed a final conference on December 6, 2018, to certify the case ready for trial. Empress contends that all requests for additional discovery were rejected and denied including further depositions and the court would not direct the third-patty plaintiff to respond to its demand for a verified bill of particulars from the third-patty plaintiff.
The Town opposes the motion, arguing that any severance of the third-patty action would prejudice the rights of the Town, since it would be required to litigate two separate actions and would risk facing inconsistent verdicts. The Town further argues that contrary to Empress' contentions, any delay in the case was caused by Empress.
DISCUSSION
CPLR 1010 states, in pertinent part, 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" (CPLR 1010). Further, CPLR 603 states 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).
"The determination to grant or deny a request for a severance pursuant to CPLR 603 is a matter of judicial discretion" (Herskovttz v Klein, 91 A.D.3d 598 [2d Dept 2012]). However, this discretion should be exercised sparingly (New York Schools Ins. Reciprocal v Milburn Sales Co., Inc., 138 A.D.3d 940 [2d Dept 2016]). 'Severance is generally "inappropriate where the claims against the defendants involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial'' (Id.).
Here, the third-patty action raises factual and legal issues in common with the main action and it serves the interests of judicial economy and the consistency of verdicts to have a single trial. Additionally, the Town commenced the third-patty action against Empress on November 17, 2017 and served Empress on November 28, 2017 Empress in fact did not file an answer to the third-patty complaint until June 12, 2018 and was immediately incorporated into the discovery schedule. Therefore, it was Empress' actions and not the Town that caused any delay in discovery in the third-patty action. Furthermore, discovery in the case was already extended to accommodate Empress' delay in joining the case. Any issues with regard to discovery are to be addressed' with the Court Attorney Referee assigned to the case.
Accordingly, based on the foregoing, it is
ORDERED that the motion denied; and it is further
The foregoing shall constitute the decision and order of the Court.