Jones v.
| Decision Date | 07 August 2017 |
| Docket Number | Index No. 21064/2014,Second Third-Party Index No. 83947/2016,Third-Party Index No. 43905/2014 |
| Citation | 2017 NY Slip Op 31929 (U) |
| Parties | CORNELIUS JONES and JACKLYN JONES, Plaintiffs, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, THE CITY OF NEW YORK and STALCO CONSTRUCTION, INC., Defendants. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, THE CITY OF NEW YORK and STALCO CONSTRUCTION, INC., Third-Party Plaintiffs, v. ADVANCED CONTRACTINC SOLUTIONS, Third-Party Defendant. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, THE CITY OF NEW YORK and STALCO CONSTRUCTION, INC., Second Third-Party Plaintiffs, v. JEMCO ELECTRICAL CONTRACTORS, INC., RICHARDS PLUMBING AND HEATING CO., INC., HUNTER ROBERTS CONSTRUCTION GROUP, L.L.C. and KAZANECKI CONSTRUCTION CORP., Second Third-Party Defendants. |
| Court | New York Supreme Court |
DECISION AND ORDER
PRESENT: Hon. Lucindo Suarez
Upon the following papers:
Motion Sequence #9: plaintiffs' notice of motion dated November 23, 2016 and the affirmation and exhibits submitted in support thereof; defendants' and second third-party plaintiffs' affirmation in opposition dated December 9, 2016 and the exhibits submitted therewith; plaintiffs' affirmation in reply dated December 14, 2016 and the affirmation and exhibit submitted therewith; second third-party defendant Jemco Electrical Contractors, Inc.'s affirmation in support dated December 15, 2016 and the exhibits submitted therewith; second third-party defendant Jemco Electrical Contractors, Inc.'s notice of cross-motion dated December 22, 2016 and the affirmation and exhibits submitted in support thereof; plaintiffs' affirmation in partial opposition dated January 6, 2017 and the exhibits submitted therewith; defendants' and second third-party plaintiffs' affirmation in opposition dated January 9, 2017; second third-party defendant Hunter Roberts Construction Group, L.L.C.'s notice of cross-motion dated April 27, 2017 and the affirmation, exhibits and memorandum of law submitted in support thereof; defendants' and third-party plaintiffs' affirmation in opposition dated June 20, 2017 and the exhibits submitted therewith; second third-party defendant Hunter Roberts Construction Group, L.L.C.'s affirmation in reply dated June 21, 2017 and the exhibits submitted therewith; second third-party defendant Hunter Roberts Construction Group, L.L.C.'s affirmation in reply dated June 28, 2017 not being considered as improper;
Motion Sequence #10: the order to show cause signed January 11, 2017 and the affirmation and exhibits submitted in support thereof; defendants' and second third-party plaintiffs' affirmation in opposition dated January 23, 2017 and the exhibits submitted therewith; second third-party defendant Hunter Roberts Construction Group, L.L.C.'s affirmation in reply dated February 14, 2017 and the exhibits submitted therewith;
Motion Sequence #11: the order to show cause signed February 22, 2017 and the affirmation and exhibits submitted in support thereof; defendants' and second third-party plaintiffs' affirmation in opposition dated February 20, 2017 and the exhibits submitted therewith; Motion Sequence #12: the order to show cause signed April 10, 2017 and the affirmation and exhibits submitted in support thereof; there being no opposition to the application;
Motion Sequence #13: the order to show cause signed May 11, 2017 and the affirmation and exhibits submitted in support thereof; defendants' and second third-party plaintiffs' affirmation in opposition dated May 23, 2017 and the exhibits submitted therewith; second third-party defendant Kazanecki Construction Corp.'s affirmation in reply dated June 21, 2017;
and upon the aforesaid motions having been referred to the undersigned by the Hon. Douglas E. McKeon, J.S.C.; and due deliberation; the court finds:
Motion Sequences 9-13 are consolidated for decision herein, as they involve common questions of law and fact. The issues in these consolidated motions to sever or dismiss the third-party complaint are defendants' diligence, or lack thereof, in commencing the third-party action and the resultant prejudice to the other parties.
In this Labor Law action, defendants and third-party plaintiffs New York City Health and Hospitals Corporation ("HHC") and City of New York ("CNY") are alleged to be the owners of a construction site. Defendant and third-party plaintiff Stalco Construction, Inc. ("Stalco") was the construction contractor. Defendants previously moved to vacate plaintiffs' note of issue, filed August 3, 2016, because of outstanding damages-related discovery owed by plaintiffs and to extend their time to commence third-party actions. On October 4, 2016, the court (Hon. Douglas E. McKeon, J.S.C.) granted the motion to the extent of directing plaintiff's production of various discovery and permitting defendants forty-five days (i.e. to November 18, 2016) to implead third parties. Defendants filed the third-party summons and complaint on November 4, 2016. The only filed affidavit of service of the third-party summons and complaint indicates service upon one of the third-party defendants on November 17, 2016. The third-party complaint alleges that HHCentered into direct contracts with third-party defendants Jemco Electrical Contractors, Inc. ("Jemco"), Richards Plumbing and Heating Co., Inc. ("Richards") and Hunter Roberts Construction Group, L.L.C. ("Hunter") and that Stalco entered into a subcontract with third-party defendant Kazanecki Construction Corp. ("Kazanecki"). It asserts causes of action for contractual and common-law indemnity and contribution and breach of contract for failure to procure insurance.
Plaintiff and all third-party defendants now move to dismiss or sever the third-party action or to permit discovery to proceed while the action remains on the trial calendar. Defendants object to plaintiff's motion as untimely; however, inasmuch as defendants were not prevented from opposing the motion substantively and vigorously, the motion is considered.
Because plaintiffs were previously granted summary judgment on the Labor Law § 240(1) claim, they are entitled to a damages-only trial. They claim they would be prejudiced by the probability of juror confusion arising from the introduction of liability issues at trial if the third-party action were tried simultaneously. They also argue that defendants delayed commencement of the third-party action unreasonably and without explanation, which prejudices plaintiffs by delaying resolution of the issue of damages. The third-party defendants argue similarly in their motions. They also argue that, given the limited discovery performed in the main action, they would be prejudiced by being forced to participate in expedited discovery in the absence of severance. They further argue that the main action and third-party action do not share common issues. For example, Jemco counter-claimed against third-party plaintiffs for contribution and indemnity and cross-claimed against the other third-party defendants, making all third parties' negligence an issue, whereas defendants'/third-party plaintiffs' liability - or any party's negligence - is not an issue in the main action.
Plaintiffs interposed no written opposition to an extension of defendants' time to implead at the time of defendants' motion to vacate the note of issue. Plaintiffs have not sought renewal or reargument of Justice McKeon's order, and to the extent the present motion could be deemed such an attempt, plaintiffs do not argue that Justice McKeon's order was erroneous in fact or law, nor do plaintiffs submit any explanation for failing to oppose defendants' motion. Defendants argue that the arguments offered by plaintiffs now were made at oral argument of the prior motion and obviously, given Justice McKeon's order, were deemed insufficient. There is no record of such proceedings.
Defendants argue that Judge McKeon's order is "law of the case." That doctrine, however, applies exclusively to questions of law and has no application to discretionary case management decisions. See Allstate Ins. Co. v. Buziashvili, 71 A.D.3d 571, 897 N.Y.S.2d 88 (1st Dep't 2010). Furthermore, even if plaintiffs are collaterally estopped from relitigating joinder of the third-party claims, third-party defendants are not. See Allied Chemical v. Niagara Mohawk Power Corp., 72 N.Y.2d 271, 276, 528 N.E.2d 153, 155, 532 N.Y.S.2d 230, 232 (1988), cert. denied, 488 U.S. 1005, 109 S. Ct. 785 (1989).
It is also worth noting that, in defendants' motion to strike the note of issue, after over 13 ½ pages of argument as to why the note of issue should be stricken solely because of damages-related discovery remaining outstanding from plaintiffs, defendants' argument regarding third-party practice was contained, in its entirety, in one sentence in the paragraph labeled "Conclusion:" "If the court does not vacate the note of issue, defendants request that this court enter an order staying the trial of this matter until after the completion of discovery as outlined above, extending their time to implead third-parties [sic] and commence third-party actions until one hundred twenty (120) days after the completion of all discovery."
All of the discovery that defendants sought was damages-related and would have had no bearing on defendants' ability to implead. There is simply nothing in the record to indicate that the court's attention was directed to, nor that it decided, any issue other than defendants' right, in the abstract, to pursue third-party practice. There is no basis to conclude that the parties are estopped from making the present motions. Accordingly, defendants' claim that plaintiff should be sanctioned, even disregarding defendants' failure to cross-move for such relief, is meritless.
There is no argument that the third-party action was timely commenced with respect to Justice McKeon's post-note of issue order. The parties, however, cite defendants' inexplicable...
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