Leban v. McGee Amusements Inc.

2025 NY Slip Op 32794(U)

• Court: New York Supreme Court, New York County
• Decided: August 14, 2025
• Docket: Index No. 151596/2020
• Status: Unpublished

Opinion

Leban v McGee Amusements Inc. 2025 NY Slip Op 32794(U) August 14, 2025 Supreme Court, New York County Docket Number: Index No. 151596/2020 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. INDEX NO. 151596/2020 NYSCEF DOC. NO. 88 RECEIVED NYSCEF: 08/14/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM PART 04 Justice ---------------------------------------------------------------------------------X INDEX NO. 151596/2020 JOANNA LEBAN, MOTION DATE 11/21/2024 Plaintiff, MOTION SEQ. NO. 003 -v- MCGEE AMUSEMENTS INC., BRIAN HOGAN, DECISION + ORDER ON MOTION Defendants. ---------------------------------------------------------------------------------X

MCGEE AMUSEMENTS INC., BRIAN HOGAN, Third-Party Index No. 595376/2024 Third-Party Plaintiffs,

-against-

NICKHIL GUPTA, D.O., NICKHIL GUPTA, D.O., P.C.,

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

The following e-filed documents, listed by NYSCEF document number (Motion 003) 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to SEVER ACTION .

Upon the foregoing documents, plaintiff’s motion to sever the third-party action from this

action and, thereafter, consolidate the severed third-party action with the action Joanna Leban v

Nickhil Gupta D.O et al, pending in New York State Supreme Court, New York County under

Index No. 805119/2024, is granted to the extent that the third-party action is severed and otherwise

denied without prejudice.

Plaintiff commenced this action on February 12, 2020, alleging that on April 15, 2019,

defendant Brian Hogan fell from an elevated height while performing repairs at plaintiff’s place

of employment, that his fall was due to the negligence of defendant McGee Amusements Inc., and

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that plaintiff was injured because of Hogan’s fall (NYSCEF Doc No. 1, complaint). Accordingly,

plaintiff asserted claims sounding in negligence and violation of Labor Law §§200 and 240(1)

(id.).

On April 9, 2024, defendants commenced a third-party action against Nickhil Gupta, D.O.

and Nickhil Gupta, D.O., P.C., for medical malpractice, contribution, and indemnification, alleging

that the third-party defendants failed to properly diagnose and treat plaintiff for any injuries she

sustained on April 15, 2019, exacerbating same (NYSCEF Doc No. 60).

Plaintiff now moves to sever the third-party action on the grounds that the first-party action

is ready for trial and discovery in the third-party action will unduly delay the trial of this five-year-

old action, prejudicing her. Defendants and Third-Party Defendants oppose the motion, arguing

that the commencement of the third-party action could not have surprised plaintiff and that the first

and third-party actions involve common questions of law and facts such that severance is

inappropriate. They also argue that, given these shared questions of law and fact, plaintiff’s

separate malpractice action against Dr. Gupta should be consolidated into this action, though they

do not formally cross-move for such relief.

DISCUSSION

CPLR 603 provides that, “[i]n furtherance of convenience or to avoid prejudice the court

may order a severance of claims, or may order a separate trial of any claim, or of any separate

issue...” (CPLR 603). CPLR 1010, which applies specifically to third-party actions, provides that

The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just. In exercising its discretion, the court shall consider whether the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party.

(CPLR 1010).

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Severance is warranted here. It is undisputed that discovery is complete in the first-party

negligence action while discovery in the medical malpractice third-party action, commenced years

after the first party action, will delay trial of the first-party action and “inevitably” prejudice

plaintiff (Cortez v New York City Hous. Auth., 163 AD2d 13 [1st Dept 1990]; see also Gardner v

City of New York, 102 AD2d 800, 800 [1st Dept 1984]).

However, that branch of plaintiff’s motion to consolidate the now-severed action with

Joanna Leban v Nickhil Gupta D.O et al, pending in New York State Supreme Court, New York

County under index 805119/2024 is denied without prejudice to any party moving for such relief

in that action or in the now-severed action.

Accordingly, it is

ORDERED that the branch of plaintiff’s motion to sever the third-party action is granted

and it is hereby severed from this action; and it is further

ORDERED that the branch of plaintiff’s motion to consolidate the severed third-party

action with the action Joanna Leban v Nickhil Gupta D.O et al, pending in New York State

Supreme Court, New York County under Index No. 805119/2024, is denied without prejudice;

and it is further

ORDERED that the Clerk of the Court is directed to sever the third-party action from the

main action, and the third-party action shall proceed as a separate action and the Clerk of the Court

shall issue an index number to the severed third-party action upon the payment of the appropriate

fees by McGee Amusements Inc.; and it is further

ORDERED that the caption of this severed action shall read:

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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X MCGEE AMUSEMENTS INC., BRIAN HOGAN,

Plaintiff, Index No. 151596/2020

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

ORDERED that plaintiff shall, within ten days of the date of this decision and order, serve

a copy of same with notice of entry upon defendants and third-party defendant as well as the Clerk

of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk’s Office (60 Centre

Street, Room 119) who shall mark their records to reflect the severance; and it is further

ORDERED that such service upon the Clerk of the Court and 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

“efiling” page on this court’s website); and it is further

ORDERED that plaintiff is to file the note of issue on or before September 1, 2025.

This constitutes the decision and order of this Court.

8/14/2025 ~.~~ DATE HON. JUDY H. KIM, J.S.C.

□ ~ ~ CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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