Brown v. Micheletti

• Decision Date: 31 October 1983
• Citation: 468 N.Y.S.2d 160,97 A.D.2d 529
• Court: New York Supreme Court — Appellate Division
• Parties: Curtis BROWN, et al., Respondents, v. Henry MICHELETTI, et al., Defendant third-party Plaintiffs-Appellants; Castagna & Son, Inc.--Raisler Corp., a joint venture, et al., third-party Defendants-Appellants.

Page 160

468 N.Y.S.2d 160

97 A.D.2d 529

Curtis BROWN, et al., Respondents, v. Henry MICHELETTI, et al., Defendant third-party Plaintiffs-Appellants Castagna & Son, Inc.--Raisler Corp., a joint venture, et al., third-party Defendants-Appellants.

Supreme Court, Appellate Division,

Second Department.

Oct. 31, 1983.

Benjamin J. Sergi, P.C., Brooklyn (Thomas E. Paterson, New York City, of counsel), for defendant third-party plaintiffs-appellants.

Simon & White, New York City (Jerome L. Steinberg, Brooklyn, of counsel), for third-party defendant-appellant Castagna & Son, Inc.--Raisler Corp., a joint venture.

Semel, McLaughlin, Boeckmann & Skydel, New York City (Lysaght, Lysaght & Kramer, James I. Lysaght, Mineola, of counsel), for third-party defendant-appellant Raisler Corp. Schneider, Kleinick & Weitz, P.C., New York City (Brian J. Shoot and Sheridan Albert, New York City, of counsel), for respondents.

Before O'CONNOR, J.P., and WEINSTEIN, BRACKEN and BOYERS, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., defendants third-party plaintiffs Henry Micheletti and Castagna & Son, Inc. and third-party defendants Castagna & Son, Inc.--Raisler Corp., a joint venture, and Raisler Corp. appeal from so much of a purported order of the Supreme Court, Kings County, dated November 9, 1982, as, inter alia, granted plaintiffs' pretrial motion to dismiss defendants' affirmative defenses of Workers' Compensation and denied defendants' and third-party defendants' cross motion to dismiss the complaint pursuant to the Workers' Compensation Law.

Appeal dismissed, with one bill of costs payable jointly by appellants appearing separately and filing separate briefs.

The paper purportedly appealed from in this case is denominated an order of Trial Term and recites that plaintiffs had moved pursuant to CPLR 4401 (judgment during trial) to strike defendants' affirmative defenses of section 11 of the Workers' Compensation Law, and that defendants had cross-moved pursuant to CPLR 4401 as well as CPLR 3212 (summary judgment) to dismiss the complaint pursuant to those defenses. The paper further recites that an immediate "hearing" was held by the court pursuant to subdivision (c) of CPLR 3213 (meaning 3212). The decretal paragraphs of the paper granted plaintiffs' motion to strike defendants' affirmative defenses of Workers' Compensation, denied defendants' and third-party defendants' cross motion to dismiss the complaint, and stayed the "trial" of the action pending a determination of these appeals.

The minutes of the "hearing" reveal that the purported order was entered, without objection, at the request of the defendants, for the purpose of taking this appeal. On the eve of trial, plaintiff moved before Special Term to strike the defense of Workers' Compensation. The justice presiding over that part denied the motion without prejudice to its renewal before Trial Term "in view of the triable issues to be resolved thereat". According to the minutes before Trial Term, after a jury had been selected and sworn, the parties unsuccessfully attempted to stipulate to sufficient facts so as to permit the court to rule on the defense of Workers' Compensation as a matter of law. It was determined that a "preliminary hearing" would be held before the court to adduce evidence respecting the facts not stipulated, and the jury was retired. The motion to dismiss the defenses and the cross motion to dismiss the complaint based on those defenses were argued after testimony was taken. Under these circumstances, the ruling that resulted, although reduced and entered as an "order", is not appealable.

As construed by the courts, paragraph 2 of subdivision (a) of CPLR 5701 authorizes appeals as of right to this court only from orders deciding motions made upon notice that, inter alia, affect a substantial right. Generally, decisions made by the court during the course of a trial of an action are deemed trial rulings, not orders, whether or not they are reduced to a writing in the form specified for orders in subdivision (a) of CPLR 2219 (see Cotgreave v. Public Administrator of Imperial County [Cal.], 91 A.D.2d 600, 456 N.Y.S.2d 432; Katz v. Katz, 68 A.D.2d 536, 542, 418 N.Y.S.2d 99; Fortgang v. Chase Manhattan Bank, 29 A.D.2d 41, 285 N.Y.S.2d 110; Kinker v. 6409-20th Ave. Realty Corp., 28 A.D.2d 907, 281 N.Y.S.2d 864, affd. 20 N.Y.2d 796, 284 N.Y.S.2d 452, 231 N.E.2d 128; Covell v. H.R.H. Constr. Corp., 24 A.D.2d 566, 262 N.Y.S.2d 370, affd. 17 N.Y.2d 709, 296 N.Y.S.2d 718, 216 N.E.2d 710; Matter of Myer v. Myer, 271 App.Div. 1004, 69 N.Y.S.2d 591; Jackman v. Hasbrouck, 168 App.Div. 256, 153 N.Y.S. 876; compare Berg v. City of New York, 42 A.D.2d 770, 346 N.Y.S.2d 465, with Richardson v. Wengatz, 33 A.D.2d 947, 306 N.Y.S.2d 1018; cf. Matter of Aurnou v. Legett, 79 A.D.2d 623, 433 N.Y.S.2d 811 [criminal procedure] ). This was the substance of subdivision 1 of section 583 of the former Civil Practice Act, ^* and the drafters of the CPLR intended no change by omitting this provision from the present statute (10 Carmody-Wait 2d, NY Prac, § 70.37 p 304).

The discretion conferred by CPLR 2218, 3211 (subd. [c] ) and 3212 (subd. [c] ) to grant separate trials of issues of fact raised by pretrial motions is to be exercised prior to, and not during the course of the trial of the action, so that the resulting ruling, reduced to an order prior to trial of the action, is appealable. This conclusion follows from the fact that such pretrial motions authorize immediate trials of facts raised in the papers submitted only "when appropriate for the expeditious disposition of the controversy" (CPLR 3211, subd. [c]; 3212, subd. [c] ). In other words, "[i]t is the case-ending prospect, though of course not the certainty, which governs judicial discretion as to whether to order immediate trial" (Siegel, New York Practice, § 271, p 329; § 284, p 340; see Barker v. Conley, 267 N.Y. 43, 46, 195 N.E. 677; Duboff v. Board of Higher Educ. of City of N.Y., 34 A.D.2d 824, 312 N.Y.S.2d 726).

It may appear efficient in cases such as this one for Trial Term to resolve the narrow issues presented by pretrial motions at the commencement of the trial, in order to avoid the need to re-introduce at the trial evidence previously submitted with respect to pretrial motions. This commendable goal is what apparently motivated Trial Term and the parties in the case under review. Nevertheless, in the overall administration of civil cases, efficiency dictates that issues raised by pretrial motions be tried separately and resolved by orders made prior to trial of the action (see Korn v. Korn, 56 A.D.2d 837, 392 N.Y.S.2d 73; Duboff v. Board of Higher Educ. of City of N.Y., supra; cf. Matter of Parker Constr. Corp. v. Williams, 35 A.D.2d 839, 317 N.Y.S.2d 911).

Separately trying issues raised by pretrial motions obviates the danger of back-handedly granting preferences for trial of the merits of the action (although in the case under review a general preference on account of disability had been granted). (See Siegel, 1973 Practice Commentaries, McKinney's Cons Laws of New York, Book 7B, CPLR 3211:47, pp 23-24; CPLR 3212:22, pp 105-106, 1982-1983 Pocket Part.)

In the case under review, the purported order resolving the pretrial motion and cross motion was a trial ruling made after the commencement of trial of the action in the course of one continuous proceeding before Trial Term (see Matter of Parker Constr. Corp. v. Williams, 35 A.D.2d 839, 317 N.Y.S.2d 911; supra; Hacker v. City of New York, 25 A.D.2d 35, 37, 266 N.Y.S.2d 194). Accordingly, the purported order is not appealable. Nevertheless, since...