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Nakasato v. 331 W. 51st Corp.

Sup Ct, NY County County

June 28, 2013

AKIRA NAKASATO, Plaintiff,
v.
331 W. 51st CORP and ELEBAN YAU-MEI WONG, Defendants. ELEBEN YAU-MEI WONG, Third-Party Plaintiff,
v.
SWA ARCHITECTS & PLANNERS, SWA ARCHITECTURES PLLC, and MIGUEL SALVATIERRA CONSTRUCTION d/b/a MIGUEL SALVATIERRA, Third-Party Defendants. Index No. 103045/09

Unpublished Opinion

Subm. 3/6/13

For plaintiff: Jonathan R. Ratchik, Esq. Kramer & Dunleavy, LLP

For 331 W. 51st Corp.: Gregory S. Katz, Esq. Lewis, Brisbois et al.

ForSWA: Gregory Freedman, Esq. DeSena & Sweeney, LLP

DECISION & ORDER

BARBARA JAFFE, JSC:

By notice of motion dated May 11, 2011, third-party defendants SWA Architects & Planners and SWA Architectures PLLC (collectively, SWA) move pursuant to CPLR 603 for an order severing the main action from the third-party action on the ground that the main action is ready for trial but no discovery has occurred in the third-party action. Defendant 331 W. 51stCorp. (331) opposes.

By notice of cross motion dated May 25, 2012, defendant/third-party plaintiff Wong moves for an order striking the action from the trial calendar on the ground that plaintiff delayed in impleading Wong until after eight months after filing the note of issue and granting Wong permission to file a motion for partial summary judgment. Plaintiff opposes.

The motions are consolidated for disposition.

I. PERTINFNT BACKGROUND

On or about March 2, 2009, plaintiff instituted the main action to recover for personal injuries she allegedly sustained as a result of a trip-and-fall that occurred in front of premises owned and/or managed by 331. (Affirmation of Gregory Freedman, Esq., dated May 11, 2012 [Freedman Aff.], Exh. A).

On October 1, 2010, plaintiff filed a note of issue certifying that discovery was complete, and the main action was subsequently placed on the trial calendar for July 7, 2011.

On June 30, 2011, plaintiff filed a supplemental summons and complaint naming Wong as a defendant based on his status as the owner of the subject premises. On March 21, 2012, Wong commenced the third-party action.

The case was set for trial and adjourned on July 7, 2011, July 25, 2011, October 17, 2011, October 31, 2011, November 21, 2011, January 30, 2012, March 26, 2012, April 30, 2012, May 14, 2012, June 1, 2012, June 27, 2012, July 27, 2012, August 7, 2012, September 12, 2012, November 2, 2012, December 3, 2012, ...


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