Preview
FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
__ .. ____--- --------------------------------X Index No.:
LAZARO SANCHEZ, 24105/13E
Plaintiff, Affirmation
Partial
-against- Opoosition
EXTRA SPACE STORAGE, INC., GABRIEL
CASTANO, JERILYNN HORTON, CHI HUNG AND
CHAN YlNG,
Defendants.
--------------------------------------------- ----- X Third Party
EXTRA SPACE MANAGEMENT, INC., No.:
43205/15E
Third-Party Plaintiff,
-against-
JR BUILDING SERVICE, INC.,
Third-Party Defendant,
----------------------------------------------------------------------X
EXTRA SPACE MANAGEMENT, INC.,
Second Third-Party
Plaintiff,
-against-
LONG ISLAND LANDSCAPES, LTD.,
1 of 5 Second Third-Party
FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018
1. I am an associate of Penino & Moynihan, LLP, attorneys of record for th
Hung ("Hung") and Chi Chan Ying, sued herein as Chan Ying ("Ying") (collectivel
as "homeowner defendants"). As such, I am fully familiar with the facts and circu
matter pursuant to my review of the litigation file maintained by my office.
2. This affirmation is respectfully submitted in partial opposition to the
third-party defendant Long Island Landscapes, LTD. ("LIL"), and cross-motion
severance; as well as in support of the cross-motion by co-defendant Extra Spa
Inc. ("Extra Space") which opposed severance.
3. The procedural posture of this matter has been set forth in each of t
motions and, to conserve judicial resources, will not be set forth herein again.
principal, with the factual summary as set forth in the affirmation of Scott Goldste
October 29, 2018, in support of his cross-motion on behalf of Extra Space.
LEGAL ARGUMENT
LIL'S MOTION AND PLAINTIFF'S CROSS-MOTION TO SEVER
THIRD PARTY ACTION SHOULD BE DENIED
4. Pursuant to CPLR 603, claims may be severed "[i]n furtherance of convenien
prejudice."
The court may order a separate trial or dismissal of a third-party
controversy between the third-party plaintiff and the third-party defendant will
2 of 5
FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018
(2nd
127 A.D.2d 574, 511 N.Y.S.2d 372 Dept. 1987); Karama Supermarket. Inc.
(13t
Associates, 200 A.D.2d 355, 606 N.Y.S.2d 177 Dept. 1994), Shanley v. Ca
52, 57, 444 N.Y.S.2d 585 (1981); see also Marbilla, LLC, v. 143/145 Lexington,
(1st
544, 984 N.Y.S.2d 317 Dept. 2014) [where third-party action shares commo
and fact with main action, severance is proper only where main action is
substantial right of party prejudiced].
6. In this case, based on the facts contained herein, the main action will n
delayed and substantial rights of the parties will not be prejudiced if the note of
the main action and discovery in the third-party action proceeds.
7. In addition, by granting severance, the Court would be rewarding LIL
response to the second third-party Complaint and would be forcing the defense
litigation without a necessary party/witness.
8.
According to the second third-party pleadings, LIL was the last com
landscaping maintenance on the purported bamboo stump upon which plaintiff
The information about the steps that LIL took to maintain the bamboo in Extra
necessary and relevant to the main theories of liability levied against defendant's
9.
Severing the second third party action for a separate trial would be prejudic
defendants. LIL is a critical
3 of
witness
5 to the case as were the that
they company a
FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018
11. The amount of discovery that will be required to catch the second third-par
the procedural posture of the main action is limited and, therefore, should be
prejudicing
the main defendants by granting a severance of the second third-party
WHEREFORE, the defendants, Chi Hung and Chang Ching Ying, sue
Ying, respectfully request that the Court deny the motions for severance by the
defendant and plaintiff; together with such other, further and different relief as
just and proper.
DATED: White Plains, New York
October 31, 2018
Respectfully,
PENINO & MOYNIHAN, LLP
BY:
eather Backman
Attorneys for Defendants
CHI HUNG and CHANG CHING
s/h/a CHAN YING
1025 Westchester Ave., Ste. 403
White Plains, New York 10604
(914) 949-6996
Our File No.: 12-2337
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FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E
NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018
TO: RONEMUS & VILENSKY
Attorneys for Plaintiff
- LAZARO SANCHEZ
2nd
112 Madison Avenue, FlOOr
New York, NY 10016
(212) 779-7070
BONNER, KIERNAN TREBACH
& CROCIATA, LLP
Attorneys for Defendant - EXTRA SPACE STORAGE INC
Empire State Building
59th
350 Fifth Ave, FlOOr
New York, NY 10118
(212) 268-7535
DEVITT SPELLMAN BARRETT, LLP
Attorneys for Defendant - GABRIEL CASTANO
50 Route 111, Suite 314
Smithtown, New York 11787
(631) 724-8833
LAW OFFICE OF THOMAS K. MOORE
Attorneys for Second Third-Party Defendant - LONG ISLAND LANDSCAP
P.O. Box 2903
Hartford, CT 06104
(914) 285-8500
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Preview
FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX __ .. ____--- --------------------------------X Index No.: LAZARO SANCHEZ, 24105/13E Plaintiff, Affirmation Partial -against- Opoosition EXTRA SPACE STORAGE, INC., GABRIEL CASTANO, JERILYNN HORTON, CHI HUNG AND CHAN YlNG, Defendants. --------------------------------------------- ----- X Third Party EXTRA SPACE MANAGEMENT, INC., No.: 43205/15E Third-Party Plaintiff, -against- JR BUILDING SERVICE, INC., Third-Party Defendant, ----------------------------------------------------------------------X EXTRA SPACE MANAGEMENT, INC., Second Third-Party Plaintiff, -against- LONG ISLAND LANDSCAPES, LTD., 1 of 5 Second Third-Party FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018 1. I am an associate of Penino & Moynihan, LLP, attorneys of record for th Hung ("Hung") and Chi Chan Ying, sued herein as Chan Ying ("Ying") (collectivel as "homeowner defendants"). As such, I am fully familiar with the facts and circu matter pursuant to my review of the litigation file maintained by my office. 2. This affirmation is respectfully submitted in partial opposition to the third-party defendant Long Island Landscapes, LTD. ("LIL"), and cross-motion severance; as well as in support of the cross-motion by co-defendant Extra Spa Inc. ("Extra Space") which opposed severance. 3. The procedural posture of this matter has been set forth in each of t motions and, to conserve judicial resources, will not be set forth herein again. principal, with the factual summary as set forth in the affirmation of Scott Goldste October 29, 2018, in support of his cross-motion on behalf of Extra Space. LEGAL ARGUMENT LIL'S MOTION AND PLAINTIFF'S CROSS-MOTION TO SEVER THIRD PARTY ACTION SHOULD BE DENIED 4. Pursuant to CPLR 603, claims may be severed "[i]n furtherance of convenien prejudice." The court may order a separate trial or dismissal of a third-party controversy between the third-party plaintiff and the third-party defendant will 2 of 5 FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018 (2nd 127 A.D.2d 574, 511 N.Y.S.2d 372 Dept. 1987); Karama Supermarket. Inc. (13t Associates, 200 A.D.2d 355, 606 N.Y.S.2d 177 Dept. 1994), Shanley v. Ca 52, 57, 444 N.Y.S.2d 585 (1981); see also Marbilla, LLC, v. 143/145 Lexington, (1st 544, 984 N.Y.S.2d 317 Dept. 2014) [where third-party action shares commo and fact with main action, severance is proper only where main action is substantial right of party prejudiced]. 6. In this case, based on the facts contained herein, the main action will n delayed and substantial rights of the parties will not be prejudiced if the note of the main action and discovery in the third-party action proceeds. 7. In addition, by granting severance, the Court would be rewarding LIL response to the second third-party Complaint and would be forcing the defense litigation without a necessary party/witness. 8. According to the second third-party pleadings, LIL was the last com landscaping maintenance on the purported bamboo stump upon which plaintiff The information about the steps that LIL took to maintain the bamboo in Extra necessary and relevant to the main theories of liability levied against defendant's 9. Severing the second third party action for a separate trial would be prejudic defendants. LIL is a critical 3 of witness 5 to the case as were the that they company a FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018 11. The amount of discovery that will be required to catch the second third-par the procedural posture of the main action is limited and, therefore, should be prejudicing the main defendants by granting a severance of the second third-party WHEREFORE, the defendants, Chi Hung and Chang Ching Ying, sue Ying, respectfully request that the Court deny the motions for severance by the defendant and plaintiff; together with such other, further and different relief as just and proper. DATED: White Plains, New York October 31, 2018 Respectfully, PENINO & MOYNIHAN, LLP BY: eather Backman Attorneys for Defendants CHI HUNG and CHANG CHING s/h/a CHAN YING 1025 Westchester Ave., Ste. 403 White Plains, New York 10604 (914) 949-6996 Our File No.: 12-2337 4 of 5 FILED: BRONX COUNTY CLERK 10/31/2018 01:37 PM INDEX NO. 24105/2013E NYSCEF DOC. NO. 280 RECEIVED NYSCEF: 10/31/2018 TO: RONEMUS & VILENSKY Attorneys for Plaintiff - LAZARO SANCHEZ 2nd 112 Madison Avenue, FlOOr New York, NY 10016 (212) 779-7070 BONNER, KIERNAN TREBACH & CROCIATA, LLP Attorneys for Defendant - EXTRA SPACE STORAGE INC Empire State Building 59th 350 Fifth Ave, FlOOr New York, NY 10118 (212) 268-7535 DEVITT SPELLMAN BARRETT, LLP Attorneys for Defendant - GABRIEL CASTANO 50 Route 111, Suite 314 Smithtown, New York 11787 (631) 724-8833 LAW OFFICE OF THOMAS K. MOORE Attorneys for Second Third-Party Defendant - LONG ISLAND LANDSCAP P.O. Box 2903 Hartford, CT 06104 (914) 285-8500 5 of 5