McGinty v. Structure-Tone

• Decision Date: 07 June 2016
• Citation: 33 N.Y.S.3d 52,140 A.D.3d 465,2016 N.Y. Slip Op. 04365
• Parties: Thomas MCGINTY, Plaintiff, v. STRUCTURE–TONE, et al., Defendants. Structure–Tone, et al., Third–Party Plaintiffs, v. Eurotech Construction Corp., Third–Party Defendant. Eurotech Construction Corp., Plaintiff–Appellant, v. QBE Insurance Corp., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 465

33 N.Y.S.3d 52

2016 N.Y. Slip Op. 04365

Thomas MCGINTY, Plaintiff,

v.STRUCTURE–TONE, et al., Defendants.

Structure–Tone, et al., Third–Party Plaintiffs,

v.Eurotech Construction Corp., Third–Party Defendant.

Eurotech Construction Corp., Plaintiff–Appellant,

v.QBE Insurance Corp., Defendant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

June 7, 2016.

FG McCabe & Associates, PLLC, New York (Gerard McCabe of counsel), for appellant.

Rivkin Radler LLP, Uniondale (Anne M. Murray of counsel), for respondent.

FRIEDMAN, J.P., RENWICK, ANDRIAS, GISCHE, WEBBER, JJ.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 28, 2016, which denied Eurotech Construction Corp.'s motion to join QBE Insurance Corp. as a party to a personal injury action and consolidate the personal injury action with Eurotech's coverage action against QBE, unanimously affirmed, without costs.

The two actions sought to be consolidated, i.e., a personal injury action and an insurance coverage action, do not involve common questions of law or fact (CPLR 602[a] ); they involve different contracts, different parties, and different factual issues (see H.H. Robertson Co. v. New York Convention Ctr. Dev. Corp., 160 A.D.2d 524, 554 N.Y.S.2d 175 [1st Dept.1990] ).

Moreover, litigating an insurance coverage claim together with the underlying liability issues is inherently prejudicial to the insurer (see Kelly v. Yannotti, 4 N.Y.2d 603, 607, 176 N.Y.S.2d 637, 152 N.E.2d 69 [1958] ; McDavid v. Gunnigle, 50 A.D.2d 737, 377 N.Y.S.2d 5 [1st Dept.1975] ; D'Apice v. Tishman 919 Corp., 43 A.D.2d 925, 352 N.Y.S.2d 472 [1st Dept.1974] ). In contrast to Bridger v. Donaldson, 36 A.D.2d 915, 321 N.Y.S.2d 243 [1st Dept.1971], affd. 29 N.Y.2d 769, 326 N.Y.S.2d 565, 276 N.E.2d 626 (1971) and other cases cited by plaintiff, consolidation in this case would result in a single action involving the insured, the insurance policy, and the construction of that policy.

In addition, Eurotech did not bring its coverage action against QBE until more than six years after it was named as a third-party defendant in the liability action and almost four years after plaintiff McGinty filed the note of issue and certificate of readiness in the liability action. Litigating the actions separately will allow QBE to take any necessary discovery to which it is entitled, while avoiding prejudice caused by delay to McGinty (see Ambac Assur. Corp. v. Countrywide Home Loans, Inc., 94...