Stoddart v. Dynamic US Inc.

2025 NY Slip Op 30435(U)

• Court: New York Supreme Court, New York County
• Decided: February 3, 2025
• Docket: Index No. 150855/2022
• Status: Unpublished

Opinion

Stoddart v Dynamic US Inc. 2025 NY Slip Op 30435(U) February 3, 2025 Supreme Court, New York County Docket Number: Index No. 150855/2022 Judge: Emily Morales-Minerva 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 02/04/2025 12 :27 PM] INDEX NO. 150855/2022 NYSCEF DOC. NO. 133 RECEIVED NYSCEF: 02/04/2025

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice ---------------------------------------------------------------------------------X INDEX NO. 150855/2022 NEVA STODDART, 10/09/2024, Plaintiff, 12/09/2024, MOTION DATE 12/30/2024 -v- MOTION SEQ. NO. 002 003 004 DYNAMIC US INC., DECISION + ORDER ON Defendant MOTION ---------------------------------------------------------------------------------X

DYNAMIC US INC. Third-Party Index No. 596006/2024 Plaintiff,

-against-

lHMS, LLC (D/8/A THE PIERRE NEWYORK), 795 FIFTH AVENUE CORPORATION, J.C.R. BUILDING CORP.,

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

The following e-filed documents, listed by NYSCEF document number (Motion 002) 68, 69, 70, 71, 78, 79, 80, 81, 82 were read on this motion to/for SEVER

The following e-filed documents, listed by NYSCEF document number (Motion 003) 85. 86, 87, 88, 89, 90, 91, 92, 95, 96,113,114,115 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL

The following e-filed documents, listed by NYSCEF document number (Motion 004) 98, 99, 100, 101, 102,103,104,105,106,107,108,109,110,111,112,116,117,121,122,123,124,125,126,127,128, 129, 130 VACATE/STRIKE - NOTE OF ISSUE/JURY were read on this motion to/for DEMAND/FROM TRIAL CALENDAR

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APPEARANCES:

Jaroslawicz & Jaros PLLC, New York, NY (David Jaroslawicz, Esq., of counsel), for plaintiff.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Jasper C.B. Wong, Esq., of counsel), for defendant DYNAMIC US INC.

EMILY MORALES-MINERVA, J.S.C.

In this personal injury action, plaintiff NEVA STODDART

(Stoddart) moves, by notice of motion (sequence number 002),

pursuant to CPLR § 1010, for an order severing the third-party

action from the main action. Defendant DYNAMIC US INC.

(Dynamic) appears and submits written opposition to the motion.

Dynamic moves, by notice of motion (sequence number 003),

pursuant to CPLR § 602, for a consolidation order, requesting

that Neva Stoddart v J.C.R. Building Corp., Index No.

159323/2024, be consolidated with the instant action. Dynamic

also moves, by notice of motion (sequence number 004), pursuant

to 22 NYCRR § 202.2l(e), to vacate note of issue and remove the

case from the trial calendar. Stoddart appears and submits

written opposition to the motions.

For the reasons set forth below, the Court grants

Stoddart's motion (seq. no. 002) entirely, and otherwise denies

Dynamic's motions (seq. nos. 003 and 004).

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BACKGROUND

On January 27 , 2022, plaintiff NEVA STODDART (Stoddart)

commenced this action against defendant DYNAMIC us INC. (Dynamic) for injuries she sustained while employed at the

Pierre Hotel as a housekeeper. In the complaint, Stoddart

alleges that Dynamic was contracted to perform construction work

at the Pie rre Hotel and during such work, Dynamic moved wall -

mounted staff storage lockers into Pierre Hotel's cafeter i a,

where they were placed free - standing and unsecured (see NY St

Cts Elec Fi l ing [NYSCEF] Doc. No . 001). Stoddart alleges that

she was severely injured when an unsecured locker fell upon her

in the cafeteria (see id .). Consequently, Stoddart asserts one

cause of action sounding in negligence against Dynamic.

The parties engaged in discovery with the court (L.

Headley, J.S.C.) holding a status conference between them on

August 13, 2024. There , among other things, the court ordered

Dynamic to commence any third-par t y ac t i on on or before

September 16, 2024 (see NSYCEF Doc. No. 45, Status Conference

Order, dated August 13, 2024 [L . Headley, J . S . C .]). The court

also ordered Dynamic to "advise [Stoddart] in writing of any

outstanding discovery demands within 10 day s; [Stodda rt ] t o

respond within 30 days of receipt (see id. [emphasis added])

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Thereafter, on August 27, 2024, the court (L. Headley,

J.S.C.) granted Stoddart's motion (seq. no. 001) seeking a

special trial preference pursuant to CPLR § 34 04 (a) ( 4) . The

court held that Stoddart had established that she was over 70

years of age, and directed the "Trial Support Office [] to place

this case on the trial calendar at the head of said calendar

except for actions in which a preference was already granted"

(NYSCEF Doc. No. 55, Decision and Order, dated August 27, 2024

[L. Headley, J.S.C.]).

On October 7, 2024, Dynamic commenced a third-party action

against IHMS, LLC (D/B/A THE PIERRE NEW YORK), 795 FIFTH AVENUE

CORPORATION, and J.C.R. BUILDING CORP (third-party defendants) 1

Therein, Dynamic requests indemnification and contribution

against third-party defendants (see NYSCEF Doc. No. 62, Third-

Party Complaint). Third-party defendants were served with the

summons and complaint, but have not yet appeared or answered the

third-party action (see NYSCEF Doc. Nos. 72, 75, 76, 77,

Affidavits of Service).

1 Upon a review of the electronic file, Dynamic commenced the third-party action on September 16, 2024 in accordance with the court's (L. Headley, J.S.C.) August 13, 2024 status conference order (~ee NYSCEF Doc. No. 59, Third Party Complaint). However, due to Dynamic filing it under the incorrect document type, the filing was rejected and removed from NYSCEF (see id., noting that document was deleted on September 23, 2024 due to it not being a "Summons and Interpleader Complaint") . Dynamic filed the corrected document on October 7, 2024. As such, the third-party complaint is timely.

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Stoddart commenced a separate personal injury action

against J.C.R. Building Corp. pursuant to Neva Stoddart v J.C.R.

Building Corp., Index No. 159323/2024 (JCR Building action), on

October 7, 2024. The JCR Building action is based on the same

allegations as the instant action. However, issue is not yet

joined in the JCR Building action, and a jurist is not yet

assigned (see generally NYSCEF Doc. No. 001, Index No.

159323/2024).

On December 9, 2024, note of issue, requesting a jury

trial, was filed in the instant action {see NYSCEF Doc. No. 93,

Note of Issue, dated December 9, 2024). The note of issue

indicates that special trial preference was previously ordered

(see id.)

Now, Stoddart moves (seq. no. 002) to sever the third-party

action from the instant action. Stoddart contends that there is

no basis for Dynamic's two-year delay in commencing the third-

party action (see NYSCEF Doc. No. 69, Stoddart's Affirmation in

Support of Motion to Sever). Further, it is Stoddart's position

that because the main action is trial ready, allowing the third-

party action to proceed would result in an inordinate delay in

the trial of the main action (see -- -id.). -

Dynamic opposes and argues that Stoddart will not be

prejudiced by the delay, particularly given Stoddart filed the

J.C.R. Building action on October 7, 2024, which will require

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discovery (see NYSCEF Doc. No. 78, Dynamic's Opposition to

Stoddart's Motion).

Dynamic also moves (seq. no. 003) to consolidate the J.C.R.

Building action with the instant action, and to vacate note of

issue (seq. no. 004}. In support of consolidation, Dynamic

argues that both actions were commenced by the same plaintiff,

arose out of the same alleged incident, and involve the same

questions of law and fact (s~e NYSCEF Doc. No. 86, Dynamic's

Affirmation in Support of Motion to Consolidate). In support of

vacatur of note of issue, Dynamic asserts that discovery remains

outstanding (see NYSCEF Doc. No. 100, Dynamic's Affirmation in

Support of Motion to Vacate Note of Issue).

Stoddart opposes Dynamic's motions and maintains that

Stoddart would be substantially prejudiced if the matters were

consolidated and note of issue vacated (see NYSCEF Doc. Nos. 95,

116, Stoddart's Affirmations in Opposition). Further, Stoddart

maintains that discovery is complete (see id.)

ANALYSIS

MOTION SEQUENCE NO. 002

Rule 1010 of the CPLR provides, "[t]he court may [] order a

separate trial of the third-party claim . In exercising its

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discretion, the court shall consider whether the controversy

between the third-party plaintiff and third-party defendant will

unduly delay the determination of the main action or prejudice

the substantial rights of any party." Further, when opposing a

motion for severance of a third-party action interposed

relatively late in the course of the action, in addition to

showing the absence of prejudice, the opponent will help his

case if he has a good excuse for the delay (see Marbilla, LLC v

143/145 Lexington LLC, 116 AD3d 544 [1st Dept 2014] [finding that

defendant provided a reasonable justification for bringing the

third-party actions six years after the initial action was filed

based on the fact that it was unaware of third-party defendant's

potential liability until the deposition of a previously

unavailable witness was taken]).

Here, Stoddart would be substantially prejudiced by

inevitable delays if compelled to await completion of disclosure

in the third-party action, which was commenced more than two

years after commencement of the main action without any excuse

proffered by Dynamic (see Lombardi v Structure Tone, Inc., 118

AD3d 512 [1st Dept 2014] [finding that motion court did not abuse

its discretion in granting plaintiff's motion to sever the

third-party action given that discovery remained outstanding in

third-party action and plaintiff would be substantially

prejudiced by the subsequent delays in completing such] see

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also Blechman v Peiser's & Sons, 186 AD2d 50, 51 [1st Dept

1992]). The third-party action is in its infancy, filed only

three months ago, and the main action is trial ready, with a

special trial preference for Stoddart, who is 78 years old (see

Skolnick v Max Connor, LLC, 89 AD3d 443, 444 [1st Dept

2011] [finding that main action of 79-year-old plaintiff, who is

entitled to trial preference due to her age, should not be

delayed because of defendants' failure to diligently pursue

their claims against third-party defendants]). "While the main

and third-party action do involve common issues, any prejudice

thereby caused to [Dynamic] is less than the prejudice caused to

[Stoddart] by further delays" (Garcia v Gesher Realty Corp., 280

AD2d 440 [1st Dept 2001]).

Further, a judgment against Dynamic in the main action will

not impede its ability to obtain a judgment against third-party

defendants in a severed third-party action (see id__:__ at 441)

Accordingly, the motion (seq. no. 002) is granted, and the

third-party action is severed from the main action.

MOTION SEQUENCE NO. 003

"CPLR § 602(a) gives the trial court discretion to

consolidate actions involving common questions of law or fact"

(Progressive Ins. Co. v Vasquez, 10 AD3d 518, 519 [1st Dept

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2004]) . "Even where there are common questions of law or fact,

consolidation is properly denied if the actions are at markedly

different procedural stages and consolidation would result in

undue delay in the resolution of either matter" (Abrams v Port

Authority Trans-Hudson Corp., 1 AD3d 118, 119 [1st Dept 2003];

see F&K Supply v Johnson, 197 AD2d 814, 815 [3d Dept

1993] [[holding that it is well settled "that the existence of

substantial prejudice in the form of delay in the trial of

another action is sufficient reason to deny consolidation even

in situations where common questions of law or fact exist"]; see

also L.B. v Stahl York Ave. Co., 188 AD3d 421, 422 [1st Dept

2020]; Abrams v Port Authority Trans-Hudson Corp., 1 AD3d 118

[1st Dept 2003).

Here, despite there being identical issues of fact, the two

actions are at vastly different stages of litigation -- note of

issue has been filed in the instant action, while issue is not

even joined in the JCR Building action (see Krembs v NYU Langone

Hosps., 214 AD3d 453, 455 [1st Dept 2023]) .

Additionally, because the court (L. Headley, J.S.C.) granted

Stoddart' s motion (seq. no. 001) for a special trial preference

due to Stoddart's age, and note of issue has already been filed,

the instant matter will be placed on the trial calendar imminently

(see NYSCEF Doc. No. 55, Decision and Order, dated August 27,

2024) Stoddart, who is 78 years old, will suffer significant

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prejudice in waiting, possibly for two years or more, for the J.C.R

Building action to arrive at the same point procedurally. The

significant prejudice to Stoddart outweighs any judicial economy

that would be served by consolidating these two matters (see Stahl ---- -·-

York Ave. Co., 188 AD3d at 421; see also F&K Supply,_ 197 AD2d at

814; Ahmed v C.D. Kobsons, Inc., 73 AD3d 440, 441 [1st Dept

2010] [affirming denial of consolidation motion when actions were

in markedly different procedural stages]). Therefore, the motion

to consolidate (seq. no. 003) is denied.

MOTION SEQUENCE NO. 004

Pursuant to 22 NYCRR § 202.2l[e], within 20 days after

service of a note of issue and certificate of readiness, any

party to the action may move to vacate the note of issue, upon

an affidavit showing in what respects the case is not ready for

trial, and the court may vacate the note of issue if it appears

that a material fact in the certificate of readiness is

incorrect (see Vargas v. Villa Josefa Realty Corp., 28 AD3d

389, 390 [1st Dept 2006]; see also Paulino v Staten Island

University Hosp., 2025 NY Slip Op 00232 [2d Dept 2025]).

Dynamic contends that note of issue "must be vacated"

because certain discovery remains outstanding, namely

"[Stoddart's] responses to Dynamics Supplemental Discovery

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Demands dated December 3 I 2024· f (Stoddart's] responses to

Dynamics demands and authorization dated August 19, 2024; and

[Stoddart's] responses to Dynamic's Notice to Produce dated

August 19, 2024" (NYSCEF Doc. No. 100, Dynamic's Affirmation in

Support of Motion). However, the court is unpersuaded by

Dynamic's disingenuous arguments.

The court, in its August 13, 2024 Status Conference Order,

ordered Dynamic to "advise [Stoddart] in writing of any

outstanding discovery demands within 10 days" (NSYCEF Doc. No.

45, Status Conference Order, dated August 13, 2024 [L. Headley,

J. S. c.] [emphasis added] ) . In blatant disregard for the court's

order and without leave of court, Dynamic served Supplemental

Discovery Demands on December 3, 2024, which is 102 days past

due.

Further, Stoddart responded to Dynamic's August 19, 2024

discovery demands {see NYSCEF Doc. No. 110, Stoddart's Response

to August 19, 2024 Discovery Demands). If Dynamic deemed

Stoddart's responses to be insufficient or unresponsive, then

Dynamic was within its right to file the appropriate motions,

which it failed to do. The court will not vacate note of issue

to permit Dynamic to remedy its shortcomings and lack of

diligence in seeking discovery (see Taylor v Enterprise FM

Trust, 214 AD3d 493, 494 [1st Dept 2023]; see also Nikqi v

Dedona Contracting Corp., 117 AD3d 620 [1st Dept 2014])

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Accordingly, it is

ORDERED that motion (sequence number 002) of plaintiff NEVA

STODDART is granted, and the third-party action under Index No.

596006/2024 is severed from Index No. 150855/2022;

ORDERED that plaintiff shall serve a copy of this order

with notice of entry on the Clerk of this Court, within 10 days

of entry;

ORDERED that the Clerk of this Court, upon service of a

copy of this order with notice of entry, shall sever the third-

party action, Index No. 596006/2024, and record such action in

the Clerk's record;

ORDERED that motion (sequence number 003) of defendant

DYNAMIC US INC. to consolidate is denied entirely; and it is

further

ORDERED that motion (sequence number 004) of defendant

DYNAMIC us INC. to vacate note of issue is denied entirely.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

□ NON-FINAL DISPOSITION

~ CHECK ONE: CASE DISPOSED

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

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

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