Preview
FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017
NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, Index No.: 150253/2017
Plaintiffs,
-against-
MEMORANDUM OF LAW
THE CITY OF NEW YORK, THE NEW YORK CITY
DEPARTMENT OF TRANSPORTATION AND
CONSOLIDATED EDISON COMPANY OF NEW
YORK, INC.,
Defendants.
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CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.,
Third-Party Plaintiff,
-against-
CAC INDUSTRIES, INC.,
Third-Party Defendant.
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CONSOLIDATED EDISON COMPANY OF
NEW YORK, INC.,
Second-Third-Party Plaintiff,
-against-
CARLO LIZZA & SONS PAVING, INC.,
Second-Third-Party Defendant.
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PRELIMINARY STATEMENT
Plaintiffs submit this Memorandum of Law in support of Plaintiffs’ motion for an Order,
pursuant to CPLR § 603, severing the Defendant/Second Third-Party Plaintiff, CONSOLIDATED
EDISON COMPANY OF NEW YORK, INC.’s Second- Third-Party action against CARLO LIZZA
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& SONS PAVING, INC from the main action on the grounds that allowing such action to proceed
with the main action would cause undue delay and prejudice to the Plaintiffs, and the circumstances
do not warrant such a delay.
Defendant CON EDISON filed a third-party complaint upon CARLO LIZZA on August
7, 2018. This complaint was served upon CARLO LIZZA on August 21, 2018. On June 3, 2019
a default judgment was entered by the Court against CARLO LIZZA for failing to answer the
complaint or appear in the action.
The Note of Issue was filed on October 31, 2022. Dispositive motions have been filed and
are currently pending.
On January 4, 2023, CARLO LIZZA filed an Answer, almost five (5) years after the
Second Third-Party Complaint was filed, over two months after the Note of Issue was filed. They
served initial demands on January 24, 2023.
Plaintiff has no claims against CARLO LIZZA and during the course of four (4) years of
discovery and multiple depositions it was discovered that CARLO LIZZA had no relation to the
claims at issue here. There is absolutely no reason for the main action, that stems from injuries
sustained to Plaintiff on February 22, 2016, quickly approaching seven (7) years ago, to be delayed
from a resolution due to the sudden appearance of a defaulted party that bears no relation to the
incident at issue.
The failure to sever the Second Third-Party action will significantly prejudice Plaintiffs and
as discussed herein, Plaintiffs motion must be granted in its entirety.
BACKGROUND FACTS
On February 22, 2016, at approximately 9:00 a.m. at the intersection roadway of 9th Street
and 5th Avenue, in the City, County and State of New York Plaintiff JEFFREY GOLDSTEIN
(“Plaintiff” or “Goldstein”), was operating his motorized foot scooter at the intersectionwhen he
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was caused to fall and suffer serious injuries after his scooter hit a defective
pothole/uneven/rippled/broken surface surrounding a manhole cover designated as “Manhole
33561” that is owned, maintained and operated by the Defendant CONSOLIDATED EDISON
COMPANY OF NEW YORK, INC., (“Con Edison”).
Plaintiff Goldstein testified as follows:
Q. Describe how the accident occurred.
A. I was travelling on Ninth Street like how I do
every other morning. I normally take the bike lane,
but there was a bike lane parked [sic] [car parked in
the bike lane] at the time. So, I went around, I was
travelling, and I hit a pothole with my tire. The tire
was like sort of stuck in the pothole, and I went over
the scooter and fell on my clavicle, my shoulder area,
my wrist, and my elbow and hit my ribs.
(Exhibit 2, Jeffrey Goldstein Deposition Transcript
page 16).
Witness for Defendant Con Edison testified as follows:
Q. Is there any way that you can tell us if this is a
photograph of Manhole 33561?
A. Yes, it is. I printed this same exact one out.
Q. Okay. And by looking at this, how can you tell
this is 33561?
A. Because it’s – it’s linked with that – the WR
number I gave you prior and the work ID number I
gave you before.
Q. Okay. And does this look – does this photograph
show approximately the way it looked when you
inspected back on April 6, 2015?
A. No. When I inspected that hole, if that was the
way it was, I would’ve put in my remarks as a
regrade. That’s a Level 4 condition, and that
would’ve been noted. But since I said there were no
defects found as I left or upon arrival, I have no
recollection of it being like that.
Q. Okay. So, just so I understand your testimony
correctly. If it looked like this when you were there
on April 6th, you would’ve requested repair work
be done?
A. Right. It would’ve been noted and logged into
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the computer as a regrade. And that’s a Level 4
condition with the Public Service Commission.
(Emphasis supplied).
PROCEDURAL HISTORY
As a result of the accident and the injuries sustained, Plaintiffs filed a Summons and
Complaint dated January 10, 2017. (See Exhibit 1). Defendant CON EDISON filed its Answer on
February 17, 2017. (See Exhibit 2). Defendant CON EDISON filed a second third-party complaint
upon CARLO LIZZA on August 7, 2018. This complaint was served upon CARLO LIZZA on
August 21, 2018. On June 3, 2019 a default judgment was entered by the Court against CARLO
LIZZA for failing to answer the complaint or appear in the action. (See Exhibit 3).
All discovery has been completed and the Note of Issue was filed on October 31, 2022.
(See Exhibit 4). Dispositive motions have been filed and are currently pending.
On January 4, 2023, CARLO LIZZA filed an Answer, almost five (5) years after the
Second Third-Party Complaint was filed, over two months after the Note of Issue was filed. They
served initial demands on January 24, 2023. (See Exhibit 5 and Exhibit 6).
ARGUMENT FOR PLAINTIFFS’ MOTION TO SEVER
In determining whether a party’s motion for severance should be granted, the principal
concern of the Courts of this State is whether the denial of severance will cause undue delay and
prejudice to the Plaintiff in the main action. To make this determination the Courts typically
examine how far the main action has progressed towards trial. Pursuant to CPLR 603 Courts may
“[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.” Courts have found that severing
a third-party action from the main action was proper when the main action and the third-party
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action do not contain common factual and legal issues. See Haber v Cohen, 74 AD3d 1281, 1282
(2nd Dept. 2010); see also Emmetsberger v Mitchell, 7 A.D.3d 483 (2nd Dept. 2004).
Here, the parties in the main action have completed all discovery over the court over four
(4) years and filed the Note of Issue on October 31, 2022. As previously stated, Plaintiffs have no
claims against CARLO LIZZA in their main action. CARLO LIZZA has suddenly appeared after
the completion of discovery and is serving initial demands.
Having to repeat four (4) years of discovery to appease the defendant in the second Third-Party
action after it has been found that CARLO LIZZA had no relation to the incident in question would
be significantly prejudicial to Plaintiffs, who have had to wait almost seven (7) years to get to this
point since the incident occurred.
Severance here would be appropriate because CON EDISON’s action against CARLO
LIZZA can proceed separately as the allegations against CARLO LIZZA has absolutely no bearing
on Plaintiffs’ allegations against the Defendants in their Complaint.
CONCLUSION
Based upon the foregoing, Plaintiffs’ motion to sever should be granted because this action is
ready to proceed to trial. Any further delay caused by the addition of the stagnant Second Third-Party
action, which stems from an apparent dispute that is completely unrelated to the main action, is
unwarranted and will only serve to further prejudice the Plaintiffs. In short, the Plaintiffs have waited
long enough, and deserve their day in Court. As such, Plaintiffs respectfully request that their motion
to sever be granted so this action may proceed to a just and expeditious conclusion.
WHEREFORE, it is respectfully requested that Plaintiffs’ motion to sever be granted in its
entirety.
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Dated: New York, New York
January 31, 2023
Yours, etc.
LERNER, ARNOLD & WINSTON, LLP
Attorneys for Plaintiff
By:/s/Jacob L. Levine__________
Jacob L. Levine, Esq.
286 Fifth Avenue, 12th Floor
New York, New York 10001
jlevine@lawpartnersllp.com
(212) 686-4655
To: DAVID GOULD
RUSSO & GOULD LLP
Attorney for Defendants
CONSOLIDATED EDISON COMPANY
OF NEW YORK, INC.
33 Whitehall St 16th Floor
New York, NY 10004
(212) 482-0001
KAYLA MARIE SANTOSUOSSO
Corporation Counsel
Attorneys for Defendants/Third-Party Plaintiff
THE CITY OF NEW YORK and
THE NEW YORK CITY DEPARTEMENT OF
TRANSPORTATION
100 Church Street
New York, NY 10007
(718) 558-2100
Law Dept.#: 2017-002198
PATRICK J. McCONNELL
LAW OFFICE OF ERIC D. FELDMAN
Attorneys for Defendant/Third-Party Defendant
CAC INDUSTRIES, INC.
P.O Box 2903
Hartford, CT 06104
(917) 778-6600
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STEVEN D. ZECCA
AHMUTY, DEMERS, & McMANUS, ESQS
Attorneys for CARLO LIZZA
199 Water Street 16th Floor
New York, NY 10038
212-513-7788
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CERTIFICATION OF LENGTH OF PAPERS REQUIREMENT
I, Jacob Levine, an attorney duly admitted to practice law before the Courts of the State of
New York, hereby certify that this document complies with the word count limit set forth in section
20.8-b of the Uniform Rules for the Supreme Court and County Court because it contains fewer
words than permitted under section 202.8-b excluding parts of the documents exempted by section
202.8-b (Word Count: 1613). In preparing this certification, I have relied on the word count of the
word-processing system used to prepare this affirmation.
Dated: New York, New York
January 31, 2023
/s /Jacob L. Levine
Jacob L. Levine Esq.
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Preview
FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X JEFFREY GOLDSTEIN and KELLIE GOLDSTEIN, Index No.: 150253/2017 Plaintiffs, -against- MEMORANDUM OF LAW THE CITY OF NEW YORK, THE NEW YORK CITY DEPARTMENT OF TRANSPORTATION AND CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Defendants. -----------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party Plaintiff, -against- CAC INDUSTRIES, INC., Third-Party Defendant. -----------------------------------------------------------------------X CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Second-Third-Party Plaintiff, -against- CARLO LIZZA & SONS PAVING, INC., Second-Third-Party Defendant. ----------------------------------------------------------------------------X PRELIMINARY STATEMENT Plaintiffs submit this Memorandum of Law in support of Plaintiffs’ motion for an Order, pursuant to CPLR § 603, severing the Defendant/Second Third-Party Plaintiff, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.’s Second- Third-Party action against CARLO LIZZA 1 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 & SONS PAVING, INC from the main action on the grounds that allowing such action to proceed with the main action would cause undue delay and prejudice to the Plaintiffs, and the circumstances do not warrant such a delay. Defendant CON EDISON filed a third-party complaint upon CARLO LIZZA on August 7, 2018. This complaint was served upon CARLO LIZZA on August 21, 2018. On June 3, 2019 a default judgment was entered by the Court against CARLO LIZZA for failing to answer the complaint or appear in the action. The Note of Issue was filed on October 31, 2022. Dispositive motions have been filed and are currently pending. On January 4, 2023, CARLO LIZZA filed an Answer, almost five (5) years after the Second Third-Party Complaint was filed, over two months after the Note of Issue was filed. They served initial demands on January 24, 2023. Plaintiff has no claims against CARLO LIZZA and during the course of four (4) years of discovery and multiple depositions it was discovered that CARLO LIZZA had no relation to the claims at issue here. There is absolutely no reason for the main action, that stems from injuries sustained to Plaintiff on February 22, 2016, quickly approaching seven (7) years ago, to be delayed from a resolution due to the sudden appearance of a defaulted party that bears no relation to the incident at issue. The failure to sever the Second Third-Party action will significantly prejudice Plaintiffs and as discussed herein, Plaintiffs motion must be granted in its entirety. BACKGROUND FACTS On February 22, 2016, at approximately 9:00 a.m. at the intersection roadway of 9th Street and 5th Avenue, in the City, County and State of New York Plaintiff JEFFREY GOLDSTEIN (“Plaintiff” or “Goldstein”), was operating his motorized foot scooter at the intersectionwhen he 2 2 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 was caused to fall and suffer serious injuries after his scooter hit a defective pothole/uneven/rippled/broken surface surrounding a manhole cover designated as “Manhole 33561” that is owned, maintained and operated by the Defendant CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., (“Con Edison”). Plaintiff Goldstein testified as follows: Q. Describe how the accident occurred. A. I was travelling on Ninth Street like how I do every other morning. I normally take the bike lane, but there was a bike lane parked [sic] [car parked in the bike lane] at the time. So, I went around, I was travelling, and I hit a pothole with my tire. The tire was like sort of stuck in the pothole, and I went over the scooter and fell on my clavicle, my shoulder area, my wrist, and my elbow and hit my ribs. (Exhibit 2, Jeffrey Goldstein Deposition Transcript page 16). Witness for Defendant Con Edison testified as follows: Q. Is there any way that you can tell us if this is a photograph of Manhole 33561? A. Yes, it is. I printed this same exact one out. Q. Okay. And by looking at this, how can you tell this is 33561? A. Because it’s – it’s linked with that – the WR number I gave you prior and the work ID number I gave you before. Q. Okay. And does this look – does this photograph show approximately the way it looked when you inspected back on April 6, 2015? A. No. When I inspected that hole, if that was the way it was, I would’ve put in my remarks as a regrade. That’s a Level 4 condition, and that would’ve been noted. But since I said there were no defects found as I left or upon arrival, I have no recollection of it being like that. Q. Okay. So, just so I understand your testimony correctly. If it looked like this when you were there on April 6th, you would’ve requested repair work be done? A. Right. It would’ve been noted and logged into 3 3 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 the computer as a regrade. And that’s a Level 4 condition with the Public Service Commission. (Emphasis supplied). PROCEDURAL HISTORY As a result of the accident and the injuries sustained, Plaintiffs filed a Summons and Complaint dated January 10, 2017. (See Exhibit 1). Defendant CON EDISON filed its Answer on February 17, 2017. (See Exhibit 2). Defendant CON EDISON filed a second third-party complaint upon CARLO LIZZA on August 7, 2018. This complaint was served upon CARLO LIZZA on August 21, 2018. On June 3, 2019 a default judgment was entered by the Court against CARLO LIZZA for failing to answer the complaint or appear in the action. (See Exhibit 3). All discovery has been completed and the Note of Issue was filed on October 31, 2022. (See Exhibit 4). Dispositive motions have been filed and are currently pending. On January 4, 2023, CARLO LIZZA filed an Answer, almost five (5) years after the Second Third-Party Complaint was filed, over two months after the Note of Issue was filed. They served initial demands on January 24, 2023. (See Exhibit 5 and Exhibit 6). ARGUMENT FOR PLAINTIFFS’ MOTION TO SEVER In determining whether a party’s motion for severance should be granted, the principal concern of the Courts of this State is whether the denial of severance will cause undue delay and prejudice to the Plaintiff in the main action. To make this determination the Courts typically examine how far the main action has progressed towards trial. Pursuant to CPLR 603 Courts may “[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.” Courts have found that severing a third-party action from the main action was proper when the main action and the third-party 4 4 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 action do not contain common factual and legal issues. See Haber v Cohen, 74 AD3d 1281, 1282 (2nd Dept. 2010); see also Emmetsberger v Mitchell, 7 A.D.3d 483 (2nd Dept. 2004). Here, the parties in the main action have completed all discovery over the court over four (4) years and filed the Note of Issue on October 31, 2022. As previously stated, Plaintiffs have no claims against CARLO LIZZA in their main action. CARLO LIZZA has suddenly appeared after the completion of discovery and is serving initial demands. Having to repeat four (4) years of discovery to appease the defendant in the second Third-Party action after it has been found that CARLO LIZZA had no relation to the incident in question would be significantly prejudicial to Plaintiffs, who have had to wait almost seven (7) years to get to this point since the incident occurred. Severance here would be appropriate because CON EDISON’s action against CARLO LIZZA can proceed separately as the allegations against CARLO LIZZA has absolutely no bearing on Plaintiffs’ allegations against the Defendants in their Complaint. CONCLUSION Based upon the foregoing, Plaintiffs’ motion to sever should be granted because this action is ready to proceed to trial. Any further delay caused by the addition of the stagnant Second Third-Party action, which stems from an apparent dispute that is completely unrelated to the main action, is unwarranted and will only serve to further prejudice the Plaintiffs. In short, the Plaintiffs have waited long enough, and deserve their day in Court. As such, Plaintiffs respectfully request that their motion to sever be granted so this action may proceed to a just and expeditious conclusion. WHEREFORE, it is respectfully requested that Plaintiffs’ motion to sever be granted in its entirety. 5 5 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 Dated: New York, New York January 31, 2023 Yours, etc. LERNER, ARNOLD & WINSTON, LLP Attorneys for Plaintiff By:/s/Jacob L. Levine__________ Jacob L. Levine, Esq. 286 Fifth Avenue, 12th Floor New York, New York 10001 jlevine@lawpartnersllp.com (212) 686-4655 To: DAVID GOULD RUSSO & GOULD LLP Attorney for Defendants CONSOLIDATED EDISON COMPANY OF NEW YORK, INC. 33 Whitehall St 16th Floor New York, NY 10004 (212) 482-0001 KAYLA MARIE SANTOSUOSSO Corporation Counsel Attorneys for Defendants/Third-Party Plaintiff THE CITY OF NEW YORK and THE NEW YORK CITY DEPARTEMENT OF TRANSPORTATION 100 Church Street New York, NY 10007 (718) 558-2100 Law Dept.#: 2017-002198 PATRICK J. McCONNELL LAW OFFICE OF ERIC D. FELDMAN Attorneys for Defendant/Third-Party Defendant CAC INDUSTRIES, INC. P.O Box 2903 Hartford, CT 06104 (917) 778-6600 6 6 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 STEVEN D. ZECCA AHMUTY, DEMERS, & McMANUS, ESQS Attorneys for CARLO LIZZA 199 Water Street 16th Floor New York, NY 10038 212-513-7788 7 7 of 8 FILED: NEW YORK COUNTY CLERK 01/31/2023 12:51 PM INDEX NO. 150253/2017 NYSCEF DOC. NO. 113 RECEIVED NYSCEF: 01/31/2023 CERTIFICATION OF LENGTH OF PAPERS REQUIREMENT I, Jacob Levine, an attorney duly admitted to practice law before the Courts of the State of New York, hereby certify that this document complies with the word count limit set forth in section 20.8-b of the Uniform Rules for the Supreme Court and County Court because it contains fewer words than permitted under section 202.8-b excluding parts of the documents exempted by section 202.8-b (Word Count: 1613). In preparing this certification, I have relied on the word count of the word-processing system used to prepare this affirmation. Dated: New York, New York January 31, 2023 /s /Jacob L. Levine Jacob L. Levine Esq. 8 8 of 8