The opinion of the court was delivered by: Sweet, D.J.,
Defendant Turner Construction Company ("Turner") has moved for
leave to file an interlocutory appeal of the following issues:
(1) the June 4, 2001 order denying Turner's motion for a mistrial
based on an alleged "Mary Carter" agreement between plaintiffs
Wausau Business Insurance Company ("Wausau") and Central
and third-party defendants Trident Mechanical Systems,
Inc. ("Trident") and Dualstar Technologies, Inc. ("Dualstar");
(2) the May 31, 2001 order dismissing all claims against
defendant/third-party defendant Schuman Lichtenstein Claman
Efron Architects ("SLCE"); (3) the April 30, 2001 order severing
defendant/third party defendant Amtex Electrical Corp. ("Amtex")
as a party to the Wausau trial; (4) the oral order denying
Turner's motion to dismiss the entire jury pool due to a
prospective juror's allegedly prejudicial statements; (5) whether
counsel for Trident and counsel for Wausau improperly addressed
the percentage of liability issue in closing arguments before the
jury in the first phase of this bifurcated trial; and seeking (6)
an order affirming the jury's verdict and certifying that order
for immediate appeal to the Second Circuit Court of Appeals.
Turner also seeks an order staying the commencement of the damage
phase of the trial pending hearing and determination of the
issues on appeal if the interlocutory order is granted.
Defendant/Aris Development Corporation ("Aris") joins Turner's
motion. Plaintiffs Wausau and Central Synagogue, as well as
defendants/third-party defendants Trident, Dualstar, Schuman
Lichtenstein Claman Efron Architects ("SLCE"), and Amtex oppose.
For the reasons set forth below, the motion will be denied.
Title 28 United States Code section 1292 grants district courts
discretion to issue interlocutory orders when an issue or issues
involve " controlling questions of law  as to which there
is substantial ground for difference of opinion and that  an
immediate appeal from the order may materially advance the
ultimate termination of the litigation." 28 U.S.C. § 1292(b);
see SEC v. Credit Bancorp, Ltd., 103 F. Supp.2d 223, 226
(S.D.N.Y. 2000). "The statute must be strictly construed and
`only exceptional circumstances [will] justify a departure from
the basic policy of postponing appellate review until after the
entry of a final judgment.'" Colon v. BIC USA, Inc., 2000 U.S.
Dist. LEXIS 797, at *2 (S.D.N.Y. Jan. 30, 2001) (quoting
Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.
In considering a request for certification, a district court
must carefully assess whether each of the three conditions has
been met. See Primavera Famillienstifung v. Askin, 139 F. Supp.2d 567
(S.D.N.Y. 2001). To determine whether the first element has
been met, district courts may consider whether reversal could
result in dismissal or could significantly affect the conduct of
the action, or whether the certified issue has precedential value
for a large number of cases. See Klinghoffer, 921 F.2d at 24-25.
A mere claim that the district court's ruling was incorrect does
not demonstrate a substantial ground for difference of opinion
under the second element. See Scott v. The Dime Savings Bank of
New York, 1993 U.S. Dist. LEXIS 12325 at *3-4 (S.D.N.Y. Sept. 3,
1993). Finally, in considering whether the third factor has been
met, district courts should assess whether the appeal "promises
to advance the time for trial or shorten the time required for
trial." In re Oxford Health Plans, Inc., 182 F.R.D. 51, 53
(S.D.N.Y. 1998) (quotation omitted). See also In re Duplan Corp.,
591 F.2d 139, 148 n. 11 (2d Cir. 1978) ("The critical requirement
is that [interlocutory appeal] have the potential for
substantially accelerating the disposition of the litigation.").
The Second Circuit has repeatedly emphasized that district
courts must "exercise great care in making a § 1292(b)
certification." Westwood Pharmaceuticals, Inc. v. National Fuel
Gas Dist. Corp.,
964 F.2d 85, 89 (2d Cir. 1992). See also
Klinghoffer, 921 F.2d at 25. Certification is appropriate only in
"exceptional cases," where early appellate review might avoid
protracted and expensive litigation." Telectronics Proprietary,
Ltd. v. Medtronic, Inc., 690 F. Supp.170, 172 (S.D.N.Y. 1987).
Interlocutory appeal was not intended as a "vehicle to provide
early review of difficult rulings in hard cases." German v.
Federal Home Loan Mortgage Corp., 896 F. Supp. 1385, 1398
(S.D.N.Y. 1995). The benefit to the district court in avoiding an
unnecessary trial must be weighed against the inefficiency of
having the Court of Appeals hear multiple appeals in the same
case. See Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 631
(2d Cir. 1991).
1. Failure to Declare a Mistrial Due to the A11eged
"Mary Carter Agreement"
In a prior opinion, this Court denied Turner's mid-trial motion
for a mistrial due to its discovery of a secret agreement between
plaintiffs and Trident/Dualstar. See Wausau Business Ins. Co. v.
Turner Const. Co., No. 99 CIV. 0682(RWS), 2001 WL 604188
(S.D.N.Y. June 4, 2001) (Wausau III). Turner contends that an
interlocutory appeal of this order is appropriate because the
agreement was in fact an unlawful "Mary Carter agreement" that
gave Trident an improper financial motive to deflect blame on
Turner in light of the Turner's action against Trident's insurer,
Kemper. At the time the prior opinion was issued, the parties to
the settlement agreement had not yet memorialized it in writing.
They have subsequently done so, and Trident has submitted the
Joint Tortfeasor Release to the Court in support of its
opposition to this motion. (Attachment to Horneff Letter of July
10, 2001.) A review of the release reveals no cause to alter the
As Turner has raised no new issues of law or fact creating
substantial grounds for a difference of opinion as to controlling
law on this issue, the motion for leave to file an interlocutory
appeal of the order denying a mistrial is hereby denied.
Turner first argues that its third-party complaint for
indemnification from SCLE was dismissed in error for several
reasons. First, Turner contends that it should have been able to
continue its claim because SCLE was an active tortfeasor, while
Turner was no more than a passive tortfeasor. (See Christofedes
Letter of June 21, 2001 at 2.) However, plaintiff's complaint
alleges that Turner engaged in affirmative acts of wrongdoing,
which precludes recovery for indemnification, which precludes an
action by Turner against SCLE for indemnity. See Orsini v. Kugel,
9 F.3d 1042 (2d Cir. 1993) (party who has participated in
wrongdoing may not benefit from common law or implied indemnity);
Rockefeller University v. Tishman Construction Corp. of New York,
232 A.D.2d 155, 647 N.Y.S.2d 513 (N.Y. App. Div. 1996) (same).
As set forth in a prior opinion, see Wausau Business Ins. Co.
v. Turner Const. Co., 143 F. Supp.2d 336, 343 (S.D.N.Y. 2001)
(Wausau I), because Turner's responsibility as construction
manager was to oversee the work of the other contractors and
subcontractors, it is not entitled to indemnity if it was
negligent in meeting this obligation. See Morse/Diesel, Inc. v.
Trinity Industries. Inc., 859 F.2d 242, 247-48 (2d Cir. 1988)
(citing New York cases finding project managers with supervisory
obligations over subcontractors liable for negligence); Kenny v.
George A. Fuller Co., 87 A.D.2d 183, 189,
450 N.Y.S.2d 551, 555
(N.Y. App. Div. 1982) (noting, in context of New York Labor Law's
provision for contractor liability, "[l]egislative purpose of
placing absolute liability upon the party or parties responsible
for coordinating and supervising the entire construction
project."); Carollo v. Tishman Constr. & Research Co.,
440 N.Y.S.2d 437, (N.Y. Sup. Ct. 1981) (finding passively negligent
construction manager liable for active negligence of
subcontractor because contract gave construction manager the
penumbral obligation to coordinate the subcontractors and ensure
the safety of the work site).
Turner next cites Cubito v. Kreisberg, 419 N.Y.S.2d 578 (N Y
App. Div. 1979), aff'd, 51 N.Y.2d 900, 434 N.Y.S.2d 991,
415 N.E.2d 979 (1980), in support of the argument that the Court
erroneously applied an architectural malpractice standard to
Turner's claims against SLCE in considering SLCE's motion for a
directed verdict. Specifically, Turner contends that such simple
negligence, rather than the malpractice standard, applies where,
as here, the third-party plaintiff is not the architect's client.
Yet Cubito addressed the question of when a cause of action
accrues for the assertion of a bodily injury claim against a
design professional. Id. In an action pertaining to professional
misconduct, in contrast, the plaintiff must introduce evidence,
most typically through expert testimony, regarding the standard
of care and the professional's variance from that standard. See
Hydro Investors, Inc. v. Trafalgar Power, Inc., 227 F.2d 8 (2d
Cir. 2000) (architectural malpractice); D.D. Hamilton Textiles,
Inc. v. Estate of Theodore Mate, 269 A.D.2d 214, 703 N.Y.S.2d 451
(N.Y. App. Div. 2000) (professional negligence). Turner failed to
introduce any evidence of the standard of care applicable to
architects in designing roofs, and therefore has failed to
introduce any substantial ground for a difference of opinion on a
controlling question of law.
In sum, Turner has failed to meet the standard required by
§ 1292(b) to certify an interlocutory appeal ...