DeCorato Cohen Sheehan & Federico, LLP, New York, NY
(Joshua R. Cohen and Anthony Lugara of counsel), for
defendant third-party plaintiff-appellant.
E. DiJoseph, P.C., New York, NY (Arnold E. DiJoseph III of
counsel), for plaintiff-respondent.
Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy
C. Selmeci of counsel), for third-party defendant-respondent.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, HECTOR D.
LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice and a related third-party action, the defendant
third-party plaintiff appeals, as limited by its brief, from
so much of an order of the Supreme Court, Kings County
(Weston, J.), dated August 10, 2015, as, sua sponte, severed
the third-party action from the main action, and denied that
branch of its motion which was pursuant to 22 NYCRR 202.21(e)
to vacate the note of issue.
that on the Court's own motion, the notice of appeal from
so much of the order as, sua sponte, severed the third-party
action from the main action is deemed to be an application
for leave to appeal from that portion of the order, and leave
to appeal is granted (see CPLR 5701[c]); and it is
further, ORDERED that the order is reversed insofar as
appealed from, on the facts and in the exercise of
discretion, with costs, and that branch of the defendant
third-party plaintiff's motion which was pursuant to 22
NYCRR 202.21(e) to vacate the note of issue is granted.
on or about December 17, 2010, the plaintiff received medical
care from physicians employed at Kings County Hospital
Center, which is owned and operated by the defendant
third-party plaintiff, New York City Health and Hospitals
Corporation (hereinafter NYCHHC). On February 8, 2011, the
plaintiff allegedly suffered a blood clot that reached his
brain, causing him to have a stroke and sustain injuries.
April 26, 2012, the plaintiff commenced this action against
NYCHHC, inter alia, to recover damages for medical
malpractice. During the discovery process, NYCHHC learned
that while the plaintiff was being treated at Kings County
Hospital Center, he was also being treated for the same
medical condition, during the same time period, at Long
Island College Hospital (hereinafter LICH). On July 10, 2014,
NYCHHC commenced a third-party action against LICH seeking
indemnity and contribution.
December 15, 2014, the plaintiff filed a note of issue. On
January 5, 2015, NYCHHC moved, inter alia, pursuant to 22
NYCRR 202.21(e) to vacate the note of issue based upon
discovery not having been completed. In an order dated August
10, 2015, the Supreme Court, among other things, sua sponte,
severed the third-party action from the main action, and
denied that branch of NYCHHC's motion which was to vacate
the note of issue. The court based its decision on the
purported prejudice to the plaintiff that would result from
the continued prosecution of the third-party action, and the
delay by NYCHHC in bringing the third-party action. We
reverse insofar as appealed from.
it is within a trial court's discretion to grant a
severance, this discretion should be exercised
sparingly" (Shanley v Callanan Indus., 54
N.Y.2d 52, 57; see New York Schs. Ins. Reciprocal v
Milburn Sales Co., Inc., 138 A.D.3d 940, 941; New
York Cent. Mut. Ins. Co. v McGee, 87 A.D.3d 622, 624;
Curreri v Heritage Prop. Inv. Trust, Inc., 48 A.D.3d
505, 507). Severance is generally "inappropriate where
the claims against the defendants involve common factual and
legal issues, and the interests of judicial economy and
consistency of verdicts will be served by having a single
trial" (New York Cent. Mut. Ins. Co. v McGee,
87 A.D.3d at 624; see Zili v City of New York, 105
A.D.3d 949, 950-951).
the Supreme Court improvidently exercised its discretion in,
sua sponte, severing the third-party action, which raises
factual and legal issues in common with the main action
(see Herrera v Municipal Hous. Auth. of City of
Yonkers, 107 A.D.3d 949, 949; New York Cent. Mut.
Ins. Co. v McGee, 87 A.D.3d at 624; Boeke v Our Lady
of Pompei School, 73 A.D.3d 825, 826; Curreri v
Heritage Prop. Inv. Trust, Inc., 48 A.D.3d at 507-508;
Villatoro v Talt, 269 A.D.2d 390, 391; Rivera v
Ricciardi, 264 A.D.2d 442). The main action was
commenced on April 26, 2012, and a preliminary conference was
held on April 19, 2013. Thereafter, compliance conferences
were held on September 20, 2013, January 31, 2014, March 21,
2014, and June 19, 2014. The note of issue deadline was
originally designated as February 28, 2014; however, it was
adjourned by the court to May 30, 2014. The compliance
conference orders demonstrate that as late as June 19, 2014,
there was still outstanding discovery that the plaintiff was
to provide to NYCHHC in the main action. On July 10, 2014,
NYCHHC commenced the third-party action after it determined
during discovery, and upon reviewing the plaintiff's
medical records, that an impleader would be necessary.
Notwithstanding the claims to the contrary, there is no
evidence in the record to suggest that NYCHHC intentionally
delayed in bringing the third-party action.
neither the plaintiff nor LICH moved to sever the actions,
but rather, on September 22, 2014, all parties executed a
stipulation wherein they agreed that the time to file the
note of issue would be extended to December 31, 2014, so that
discovery could be completed. Notwithstanding this
stipulation, the plaintiff prematurely filed the note of
issue on December 15, 2014, even though discovery was not
complete in the third-party action. Based upon the
aforementioned circumstances, severance of the third-party
action was not warranted.
Supreme Court also improvidently exercised its discretion in
denying that branch of NYCHHC's motion which was to
vacate the note of issue, since the certificate of readiness
contained misstatements of material fact, including that
discovery had been completed (see 22 NYCRR
202.21[e]; Herrera v Municipal Hous. Auth. of ...