Opinion
Appeal No. 14408 14408A 14408B Index No. 655352/17 Case No. 2021-02410 2021-02413
10-19-2021
Timothy Simon Spicer et al., Plaintiffs-Respondents, v. Garda World Consulting (UK) Limited, Defendant-Appellant. Garda World Consulting (UK) Limited, Counterclaim Plaintiff-Appellant, v. Timothy Simon Spicer et al., Counterclaim Defendants-Respondents. Appeal No. 14408-14408A-14408B Nos. 2021-02410, 2021-02413
Skadden, Arps, Slate, Meagher & Flom LLP, New York (Michael P. Richter of counsel), for appellant. Chaffetz Lindsey LLP, New York (Sanford (Sandy) Litvack of counsel), for respondents.
Skadden, Arps, Slate, Meagher & Flom LLP, New York (Michael P. Richter of counsel), for appellant.
Chaffetz Lindsey LLP, New York (Sanford (Sandy) Litvack of counsel), for respondents.
Before: Gische, J.P., Webber, Mazzarelli, Moulton, Pitt, JJ.
Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about June 3, 2021, which granted plaintiffs' motion to sever their declaratory judgment claim from defendant GardaWorld Consulting (UK) Limited's counterclaims, unanimously affirmed, with costs. Judgment, same court and Justice, entered June 29, 2021, in favor of plaintiffs against defendant on the declaratory judgment claim, on the terms set forth in an order, same court (Charles E. Ramos, J.), entered August 23, 2018, which granted plaintiffs' motion for summary judgment on that claim, and supplemented by order, same court and Justice, entered September 12, 2018, unanimously affirmed, with costs.
The motion court providently exercised its discretion in severing defendant's counterclaims for fraud and aiding and abetting fraud from plaintiffs' declaratory judgment claim (CPLR 3212[e][1]). The counterclaims are not inextricably intertwined with or inseparable from the declaratory judgment claim (see European Am. Bank v Surgical Consultants, 308 A.D.2d 419, 419 [1st Dept 2003]; Banco do Estado de Sao Paulo, S.A. v Mendes Jr. Intl. Co., 249 A.D.2d 137, 138 [1st Dept 1998]). The declaratory judgment claim involves contract interpretation of a purchase and sale agreement, while the counterclaims involve alleged material misrepresentations made during contract negotiations leading up to the purchase and sale agreement. In addition, most of the plaintiffs in this action are not counterclaim defendants and would be prejudiced if severance were denied (see CPLR 603).
Supreme Court properly entered judgment (CPLR 5012; see Spicer v GardaWorld Consulting (UK) Ltd., 181 A.D.3d 413 [1st Dept 2020]).
We have considered defendant's remaining arguments and find them unavailing.