Fernandez v. Rite Aid of N.Y., Inc

2023 NY Slip Op 34567

• Court: New York Supreme Court, New York County
• Decided: December 28, 2023
• Status: Unpublished

Opinion

Fernandez v Rite Aid of N.Y., Inc 2023 NY Slip Op 34567(U) December 28, 2023 Supreme Court, New York County Docket Number: Index No. 190139/2021 Judge: Adam Silvera 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. INDEX NO. 190139/2021 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 01/02/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART 13 Justice - - - - - - - - - - - - - - - - - ----X INDEX NO. 190139/2021 NICOLE FERNANDEZ, MOTION DATE 10/10/2023 Plaintiff, MOTION SEQ. NO. 001 -v- RITE AID OF NEW YORK, INC, RITE AID OF NEW YORK CITY, INC, WALGREEN EASTERN CO., INC.,INDIVIDUALLY AND AS SUCCESSOR IN INTEREST DECISION + ORDER ON TO RITE-AID., JOHNSON & JOHNSON, JOHNSON & JOHNSON CONSUMER COMPANIES, INC.,KOLMAR MOTION LABORATORIES, INC.,

Defendant. ----------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 001) 13, 14, 15, 16, 17, 18, 19,20,22,23,24,25,26,27,28,29, 30, 31, 32, 33, 34, 35, 36 were read on this motion to/for DISMISS

Upon the foregoing documents, it is ordered that defendants' motion to dismiss this

action, pursuant to CPLR § 321 l(a)(4), arguing that there is a prior pending action, is denied in

accordance with the decision below.

In this asbestos action, plaintiff, Nicole Fernandez, has two actions pending against

defendants Johnson & Johnson and Johnson & Johnson Consumer Companies Inc. (collectively,

defendants "J&J") for illness caused by her use of defendants' talcum powder products and

related product liability claims. Moving defendants argue that the cases are substantially similar

pursuant to CPLR § 321 l(a)(4), and that the instant action in New York is the later filed action

such that it should be dismissed in favor of the earlier pending action in the District of New

Jersey. See Memorandum of Law in Support of Johnson & Johnson and Johnson & Johnson

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Consumer Inc.' s Motion to Dismiss, p. 1-2.

Plaintiff opposes on the basis that she was unaware of the filing status of the New Jersey

matter and had no indication that she was already being represented by the counsel involved in

that matter. See Affirmation in Opposition to Defendant Johnson & Johnson's Motion to

Dismiss, p. 2-4. Ms. Fernandez was under the impression that she did not have counsel at the

time that she contacted plaintiffs current counsel herein, who then initiated the instant matter in

New York. Id. Furthermore, plaintiffs counsel herein has affirmed that it has directly attempted

to resolve the misunderstanding with prior counsel but have been unable to do so. Id.

Defendants J&J, along with reiterating CPLR § 321 l(a)(4), further argue that they would

be "severely prejudiced" by the denial of this motion because "they will be forced to litigate two

identical lawsuits in two different venues simultaneously." See Reply Memorandum of Law in

Support of Johnson & Johnson and Johnson & Johnson Consumer Inc.'s Motion to Dismiss, p. 4.

The "[C]ourt has broad discretion in determining whether an action should be dismissed

pursuant to CPLR 321 l(a)(4) on the ground that there is another action pending". Scottsdale Ins.

Co. v Indemnity Ins. Corp. RRG, 110 AD3d 783, 784 (2nd Dep't 2013). In fact, CPLR

§ 321 l(a)(4) explicitly states that "the court need not dismiss upon this ground but may make

such order as justice requires". Further, the Appellate Division has held that "[w]here there is a

prior action pending in another State and there is a question as to whether the parties can be

afforded full relief therein, the preferred course is to stay the New York action pending a final

determination of the prior action". Lawler v TropWorld Casino & Entertainment Resort, 238

AD2d 383, 383-384 (2nd Dep't 1997).

Here, the Court finds that plaintiff was not adequately advised of and involved in the

New Jersey matter due to her clear misunderstanding about whether she was represented by

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( counsel. Plaintiff's counsel herein has further indicated that counsel in the earlier matter have

been uncooperative in allowing a substitution of counsel, delaying the resolution of the prior

matter. It is axiomatic that a litigant is entitled to hire the attorney of their choice. Plaintiff has

clearly indicated herein that she has retained counsel in this action. Plaintiff has further indicated

that she intends to litigate only the instant matter and to dismiss the one pending in New Jersey.

See Affirmation in Opposition, supra, p. 4. Intended dismissal of the other matter is sufficient to

defeat defendants J&J' s motion. See cf Harvard Steel Sales, LLC v Bain, 194 AD3d 407, 408

(1st Dep 't 2021) ("although the federal action was filed first, the subsequent dismissal of the

federal case weighs in favor of maintaining this action"). Moreover, plaintiff has confirmed that

no discovery has proceeded in the earlier filed action and_no steps have been taken in such earlier

filed case after filing of the complaint which was over three years ago. This clearly demonstrates

that defendants J&J will not be "forced to litigate two identical lawsuits" as they have not been

required to litigate the earlier one at all, and plaintiff plans to dismiss it entirely.

Based on the facts presented herein and the Court's discretion under CPLR § 321 l(a)(4),

defendants J&J's motion is denied, and the instant matter is stayed pending the dismissal of the

New Jersey case. While moving defendants argue that a denial of the instant motion is

prejudicial and prevents them from bringing another motion under CPLR § 321 l(a)(4), upon the

instant case's resumption, the former matter will have been dismissed and moving defendants

will be free to move for summary judgment or to dismiss on any other grounds they should find

applicable.

Accordingly, it is

ORDERED that defendants J&J's motion to dismiss is denied in its entirety; and it is

further

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ORDERED that within 30 days of entry plaintiff shall serve all parties with a copy of this

Decision/Order with notice of entry.

This constitutes the Decision/Order of the Court.

12/28/2023 DATE ADAM SILVERA, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED 0 DENIED GRANTED IN PART □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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