McGiver v. City of New York

McGiver v City of New York 2024 NY Slip Op 31043(U) March 28, 2024 Supreme Court, New York County Docket Number: Index No. 157640/2020 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 PM INDEX NO. 157640/2020 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 03/28/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 157640/2020 MARGARET POWER MCGIVER, MOTION DATE 05/30/2023 Plaintiff, MOTION SEQ. NO. 004 -v- THE CITY OF NEW YORK, THE NEW YORK CITY PARKS DEPARTMENT, THE AMERICAN MUSEUM OF NATURAL HISTORY, TISHMAN CONSTRUCTION CORPORATION, DECISION + ORDER ON BREEZE NATIONAL INC, JOHN CIVETTA & SONS, MOTION INC.,JOHN CIVETTA CONSTRUCTION CORP.,

Defendants. ---------------------------------------------------------------------------------X

THE CITY OF NEW YORK, THE NEW YORK CITY PARKS DEPARTMENT, THE AMERICAN MUSEUM OF NATURAL HISTORY, TISHMAN CONSTRUCTION CORPORATION, BREEZE NATIONAL INC, JOHN CIVETTA & SONS, INC.,JOHN CIVETTA CONSTRUCTION CORP.,

Third-Party Plaintiffs, Index No. 595932/2022 -v-

ANCHORMEN CONSTRUCTION LLC,

Third-Party Defendants. -------------------------------------------------------------------------------X

Ind

The following e-filed documents, listed by NYSCEF document number (Motion 004) 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123 were read on this motion to VACATE/STRIKE - NOTE OF ISSUE .

Upon the foregoing documents, the motion by defendants the City of New York, the

American Museum of Natural History, Tishman Construction Corp., John Civetta & Sons, Inc.

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FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 PM INDEX NO. 157640/2020 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 03/28/2024

and John Civetta Construction Corp. to vacate the note of issue and remove this action from the

trial calendar (or, alternatively, permit certain post-note of issue discovery) is granted and the note

of issue is vacated.

PROCEDURAL BACKGROUND

On September 17, 2020, plaintiff commenced this action alleging that on March 12, 2020

she was working as an employee of Anchormen Construction, LLC (“Anchormen”) at 365

Columbus Avenue, New York, New York when she was injured due to defendants’ negligence,

and asserting claims for common law negligence and claims under Labor Law §§200, 240(1) and

241(6) (NYSCEF Doc. No. 2 [Compl.]).

On April 8, 2021, defendants commenced a third-party action against Anchormen,

contending that any injuries plaintiff sustained were due solely to Anchormen’s negligence and

asserting claims for contractual and common law indemnification and contribution (NYSCEF Doc.

No. 17 [Third Party Answer at ¶22]).

On November 9, 2022, plaintiff and defendants entered into a discovery stipulation,

subsequently so ordered, which directed defendants to “re-file the third-party complaint on or

before 11/18/22” and added that “if [Anchormen] does not appear or answer within 30 days of this

filing, the third-party action will be preemptively severed” (NYSCEF Doc. No. 58)(emphasis

added). Defendants then re-filed their third-party complaint (denominated a “Second Third Party

Complaint”) on NYSCEF on November 17, 2022 and served same on Anchormen via the New

York State Secretary of State on December 6, 2022 and via personal service on December 13,

2022.

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Anchormen answered the Third-Party Complaint on February 8, 2023.

On April 3, 2023, the parties filed another stipulation providing, as pertinent here, that all

parties were to respond to Anchormen’s written demands within thirty days and extending

plaintiff’s time to sever the third-party action and file the note of note of issue to May 5, 2023

(NYSCEF Doc. No. 101). Plaintiff did not make any effort to sever the third-party action by that

date, though she did file the note of issue on May 8, 2023.

On May 30, 2023, defendants filed the instant motion, arguing that vacatur is necessary as

“written discovery is still being exchanged between defendants and Anchormen and the

examination before trial of Anchormen has yet to occur,” and an orthopedic and neurological IME

of plaintiff were also outstanding (NYSCEF Doc. No. 112 [Hopkins Affirm. at ¶14]).

DISCUSSION

Defendants’ motion is granted. 22 NYCRR §202.21(e) provides, in pertinent part, that “the

court may vacate the note of issue if it appears that a material fact in the certificate of readiness is

incorrect, or that the certificate of readiness fails to comply with the requirements of this section

in some material respect.” Here, plaintiff’s certificate of readiness stated that discovery was

completed when it is undisputed that, per the parties’ April 3, 2023 stipulation, discovery was

outstanding in the third-party action. To the extent plaintiff asserts that the third-party action was

severed and therefore any outstanding discovery in that action has no bearing here, the Court

disagrees.

Contrary to plaintiff’s interpretation of the November 9, 2022 stipulation, it did not serve

to sever the third-party action, “preemptively” or otherwise. First, this stipulation indicates that

any severance is conditioned upon Anchormen’s failure to file a third-party answer within twenty

days of defendants’ filing of the third-party complaint. As such, any severance necessarily would

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require an application to the Court including proof of such default prior to any severance. This

conclusion is supported by the parties’ subsequent stipulation setting an outside date for plaintiff

to “sever the third party action.” Notably, plaintiff did not make any such application or motion in

the time frame allotted or anytime thereafter.

The Court declines to extend plaintiff’s time to make such an application, for two reasons:

First, the parties’ stipulation impermissibly narrowed the deadline for Anchormen to interpose a

third-party answer, directing that it do so within twenty days of the filing of the third-party

complaint rather than within twenty (or thirty) days from defendants’ service of the third-party

complaint (See CPLR §320[a]). Accordingly, any default by Anchormen under this stipulation is

of no effect and not grounds for severance.

Additionally, the Court notes that “[a]lthough it is within a trial court’s discretion to grant

a severance, this discretion should be exercised sparingly” and is disfavored where, as here “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” (Barrett v New York

City Health and Hosps. Corp., 150 AD3d 949, 950-51 [2d Dept 2017] [internal citations and

quotations omitted]; see also Range v Trustees of Columbia Univ. in the City of NY, 150 AD3d

515, 516 [1st Dept 2017]).

Accordingly, it is hereby

ORDERED that defendants’ motion to vacate the note of issue is granted and the note of

issue is vacated and the case is stricken from the trial calendar; and it is further

ORDERED that defendants shall, within fifteen days from the date of this decision and

order, serve a copy of this decision and order, with notice of entry, on all parties and upon the

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FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 PM INDEX NO. 157640/2020 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 03/28/2024

Clerk of the General Clerk’s Office, who is hereby directed to strike the case from the trial calendar

and make all required notations thereof in the records of the court; and it is further

ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made

in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk

Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s

website); and it is further

ORDERED that defendants shall, within twenty days from the date of this decision and

order, notice an IME limited to plaintiff’s October 25, 2023 surgical procedure (noticed by filing

and servicing of a Supplemental Bill of Particulars on January 9, 2024 [NYSCEF Doc. No. 129]);

and it is further

ORDERED that said IME is to be held within sixty days of the date of the notice; and it is

further

ORDERED that defendants shall exchange IME reports within thirty days from the date

of plaintiff’s IME; and it is further

ORDERED that, upon the completion of discovery as outlined above, the plaintiff shall

cause the action to be placed upon the trial calendar by the filing of a new note of issue and

certificate of readiness (for which no fee shall be imposed), to which shall be attached a copy of

this order the plaintiff shall move to reinstate the note of issue as provided in Uniform Rule

§202.21(f); and it is further

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FILED: NEW YORK COUNTY CLERK 03/28/2024 05:00 PM INDEX NO. 157640/2020 NYSCEF DOC. NO. 130 RECEIVED NYSCEF: 03/28/2024

ORDERED that the parties are to appear for a status conference in Part 4 (80 Centre Street,

room 308) on June 7, 2024 at 10:00 a.m. at which time the Court will set the date for filing the

note of issue.

This constitutes the decision and order of the Court.

3/28/2024 DATE HON. JUDY H. KIM, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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