Kinberg v. Kinberg

Appellate Division of the Supreme Court of New York

Kinberg v. Kinberg

85 A.D.3d 673, 925 N.Y.S.2d 510

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 28, 2011

StatusPublished

Cited by4 cases

This text of 85 A.D.3d 673 (Kinberg v. Kinberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kinberg v. Kinberg, 85 A.D.3d 673, 925 N.Y.S.2d 510 (N.Y. Ct. App. 2011).

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Opinion

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered June 21, 2010, which denied plaintiffs motion to sever the action against defendant Jane Bevans, unanimously affirmed, without costs.

Supreme Court appears to have inadvertently mistaken the order entered June 22, 2009, which was the subject of a prior appeal (77 AD3d 422 [2010]), with the order dated June 30, [674]*6742009 and entered August 26, 2009. However, this factual oversight is of no consequence because plaintiff failed to demonstrate that she would be prejudiced if severance was not granted (see Williams v Property Servs., 6 AD3d 255 [2004]). Indeed, where the consolidated actions at issue are not merely “all ready for trial” (Kent v Papert Cos., 289 AD2d 127, 127 [2001]), but have already been tried and judgment entered accordingly, severance would be futile and “the interests of convenience and avoidance of prejudice” is best served by denying the motion (Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 186 [2004]; see Shanley v Callanan Indus., 54 NY2d 52, 57 [1981]).

Furthermore, plaintiffs argument that the order entered June 30, 2009, which consolidated the fraud action against Bevans with the actions against defendant Kinberg, is void because it was issued sua sponte, is unavailing. Those actions had already been consolidated by an order dated October 5, 2007, which resolved a motion made on notice by plaintiff, as well as a cross motion by Bevans made on notice, specifically requesting such relief. Contrary to plaintiffs contention, judicial notice of the order dated October 5, 2007 is proper since it is an official court record (see RGH Liquidating Trust v Deloitte & Touche LLP, 71 AD3d 198, 207 [2009], revd on other grounds — NY3d —, 2011 NY Slip Op 05368 [2011]).

We have considered the remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

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Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered June 21, 2010, which denied plaintiffs motion to sever the action against defendant Jane Bevans, unanimously affirmed, without costs.

Supreme Court appears to have inadvertently mistaken the order entered June 22, 2009, which was the subject of a prior appeal (77 AD3d 422 [2010]), with the order dated June 30, [674]*6742009 and entered August 26, 2009. However, this factual oversight is of no consequence because plaintiff failed to demonstrate that she would be prejudiced if severance was not granted (see Williams v Property Servs., 6 AD3d 255 [2004]). Indeed, where the consolidated actions at issue are not merely “all ready for trial” (Kent v Papert Cos., 289 AD2d 127, 127 [2001]), but have already been tried and judgment entered accordingly, severance would be futile and “the interests of convenience and avoidance of prejudice” is best served by denying the motion (Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185, 186 [2004]; see Shanley v Callanan Indus., 54 NY2d 52, 57 [1981]).

Furthermore, plaintiffs argument that the order entered June 30, 2009, which consolidated the fraud action against Bevans with the actions against defendant Kinberg, is void because it was issued sua sponte, is unavailing. Those actions had already been consolidated by an order dated October 5, 2007, which resolved a motion made on notice by plaintiff, as well as a cross motion by Bevans made on notice, specifically requesting such relief. Contrary to plaintiffs contention, judicial notice of the order dated October 5, 2007 is proper since it is an official court record (see RGH Liquidating Trust v Deloitte & Touche LLP, 71 AD3d 198, 207 [2009], revd on other grounds — NY3d —, 2011 NY Slip Op 05368 [2011]).

We have considered the remaining arguments and find them unavailing. Concur — Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and Román, JJ.

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Bluebook (online)

85 A.D.3d 673, 925 N.Y.S.2d 510, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinberg-v-kinberg-nyappdiv-2011.

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