Opinion
13494/2014
01-25-2019
Kenneth COWARD, Plaintiff, v. CONSOLIDATED EDISON, INC., et al., Defendants. and a Third-Party Action.
For Plaintiff: Law Offices of Bonita E. Zelman, by Bonita E. Zelman, Esq., 2001 Marcus Ave., Lake Success, New York 11042 For Defendant Con Edison: Nadine Rivellese, Esq., by John M. Fox, Esq., 4 Irving Place, New York, New York 10003-3598 For Third-Party Defendant Verizon New York, Inc.: Obermayer, Rebmann, Maxwell & Hippel, LLP, 521 Fifth Avenue, New York, New York 10175 - no written opposition papers received on the motion.
For Plaintiff: Law Offices of Bonita E. Zelman, by Bonita E. Zelman, Esq., 2001 Marcus Ave., Lake Success, New York 11042
For Defendant Con Edison: Nadine Rivellese, Esq., by John M. Fox, Esq., 4 Irving Place, New York, New York 10003-3598
For Third-Party Defendant Verizon New York, Inc.: Obermayer, Rebmann, Maxwell & Hippel, LLP, 521 Fifth Avenue, New York, New York 10175 - no written opposition papers received on the motion.
Salvatore J. Modica, J.
Papers Numbered
Orders to Show Cause 1-23
Opposition Papers 24-30
Reply Papers 31-36
Plaintiff sustained serious physical injuries on July 3, 2014 while operating his motorcycle on Springfield Boulevard, near 109th Avenue, Queens County. At that time and location, three overhead and braided electrical wires owned and maintained by defendants, Consolidated Edison, Inc. and Consolidated Edison Company of New York, Inc. ("Con Edison"), fell from a house located at 107-45 Springfield Boulevard, Queens County, wrapped around his neck, electrocuting him. Plaintiff's action was filed against the Con Edison defendants on September 11, 2014. On June 22, 2018, defendants Con Edison counsel filed a third-party action against Verizon New York, Inc. ("Verizon").
Under Motion Sequence Number Three, the plaintiff filed a motion, by order to show cause, seeking a dismissal or severance against the third party defendant, Verizon.
He filed a second motion, under Motion Sequence Number Four), also by order to show cause, requesting an order, pursuant to CPLR 3103(c), suppressing certain documents obtained by Con Edison from Verizon based upon the former's failure to notify the plaintiff as required by CPLR 2303(1)(a). In that second application, the plaintiff also requests the imposition of sanctions on Con Edison pursuant to 22 NYCRR 130-1.1. Con Edison opposes the instant motion. Although Verizon has attended conferences in this case, it has not filed any papers in response to the plaintiff's two orders to show cause.
First, the Court, after considering this matter carefully, the Court grants the plaintiff's motion under Motion Sequence Number Three, to the extent that the third-party action by Con Edison against Verizon is dismissed without prejudice. The plaintiff's motions to suppress the information obtained from Verizon and for sanctions are, however, denied.
As noted, the plaintiff was severely injured by electrical wires owned and maintained by Con Edison. According to the plaintiff, an investigation revealed that a truck driving by Springfield Boulevard, near 109th Avenue, came in contact with an electric power line belonging to Con Edison. The plaintiff had the misfortune of driving his motorcycle through that location soon thereafter. The plaintiff contends that Con Edison was negligent in causing his injuries "because the utility wires did not meet the minimum height requirement for power lines in residential areas."
In bringing this third-party action, Con Edison maintains that Verizon is either directly or partially responsible for this incident. Specifically, Con Edison alleges that "various Con Ed employees [can] testify that the Con Ed wires had been pulled down because communication wires which are lower on the utility pole had been improperly tied to the higher Con Edison wires." Con Edison further contends that a passing truck came into contact with and "pulled down the communication wire, [which], in turn, pulled down the Con Ed wire to which it was attached."
The plaintiff moves, under CPLR 1010, to dismiss the third-party complaint or for a separate trial of this claim. CPLR 1010 states:
The court may dismiss a third-party complaint without prejudice, order a separate trial of the third-party claim or of any separate issue thereof, or make such other order as may be just. In exercising its discretion, the court shall consider whether the controversy between the third-party plaintiff and the third-party defendant will unduly delay the determination of the main action or prejudice the substantial rights of any party.
The plaintiff contends that Con Edison has "delayed in bringing this third-party action for almost four years despite being aware of a potential claim against Verizon...since the date of this accident on July 3, 2014, and purposefully did not start [this] third-party action until the eve of trial." Plaintiff further contends that he would be severely prejudiced because he would be required to appear for a second deposition and have to respond to multiple discovery demands. In support of the claim that Con Edison delayed this case intentionally, the plaintiff's attorney represents that Con Edison's attorney contacted her by telephone on January 17, 2017, and by e-mail on January 24, 2017, to inform her that the wire of a cable company, whom he had not yet identified, had been improperly tied to Con Edison's electrical wire, and that this entity was responsible, in whole or, in part, for this incident.
In response, Con Edison claims that the communication was intended to alert the plaintiff's attorney, before the expiration of the statute of limitations, of the existence of a necessary defendant in this case. Con Edison's attorney further represents that the third-party action was not filed with the intent to prejudice the plaintiff.
Instead, Con Edison represents that it took time to identify the responsible communications provider. Specifically, Con Edison's counsel notes that depositions had not yet been conducted in this case and that he did not learn that Verizon owned and/or maintained the subject cable wire until, May 2, 2018, at which time the latter responded to a subpoena issued on April 26, 2018. On July 30, 2018, almost three months after learning that Verizon was the cable company responsible for tying the cable wires to the power line, Con Edison commenced the instant third-party action.
In support of his motion, the plaintiff relies on the Second Department's decision in Soto v. CBS Corp. , 157 AD3d 740 (2nd Dept. 2018). In that case, a staircase on which the plaintiff was standing, partially collapsed, injuring him. The plaintiff commenced a negligence action against defendant. During the action, the plaintiff repeatedly requested the defendant to disclose the identity of the entity which controlled and was responsible for maintaining the staircase on the date in question.
In furtherance of that request, the defendant obtained several orders from the trial court compelling the defendant to provide the plaintiff with the identity of such entity. Instead of providing the information to the plaintiff, the defendants instituted a third-party action against a cleaning contractor it had previously hired. Upon request of the plaintiff, the Court dismissed the third-party action.
In affirming the dismissal of the action, the Court in Soto noted:
CPLR 1010 provides a safety valve for cases in which the third-party claim will unduly delay the determination of the main action or prejudice the substantial rights of any party [citations omitted]. Where the record indicates that a third-party plaintiff knowingly and deliberately delayed in commencing the third-party action, the Supreme Court acts within its discretion to dismiss the third-party complaint [citations omitted]. Contrary to the defendants' contentions, the court correctly granted the plaintiff's motion to dismiss the third-party complaint because the defendants deliberately and intentionally delayed commencing the third-party action for more than four years.
Soto v. CBS Corp., supra, 157 AD3d at 741.
In the case before this Court, it took Con Edison almost four years before it filed the third-party action. The Court finds that the delay in this case "rise[s] to the level of...knowing and deliberate delay..." by Con Edison. Range v. Trustees of Columbia Univ. in the City of NY , 150 AD3d 515, 516 (1st Dept. 2016). Here, Con Edison was on notice on the date of the instant accident that a third-party cable or communications company had tethered its cable lines to Con Edison's power lines. Although Con Edison claims that the identity of this entity was not known until May 9, 2018, when Verizon disclosed certain information pursuant to a subpoena, the Court finds that this excuse does not reasonably explain the excessive delay in commencing the third-party action.
Here, Con Edison does not disclose what efforts, if any, were made prior to May 9, 2018 to ascertain the identity of that cable provider. Given the length of the delay, Con Edison was required to explain why it took so long to identify Verizon as the party responsible for this accident. The Court, therefore, finds that Con Edison has not provided a reasonable justification for bringing the third-party action almost fours years after the main action was commenced. Cf. Marbilla, LLC v. 143/145 Lexington LLC, 116 AD3d 544 (1st Dept. 2014). In the absence of a reasonable excuse, this Court can only conclude that Con Edison knowingly and deliberately delayed filing the third-party action. Cf. Skolnick v. Max Connor, LLC , 89 AD3d 443 (1st Dept. 2011). For this reason, dismissal, albeit without prejudice, is warranted pursuant to CPLR 1010. In making this determination, the Court notes that this is not the first time in this case that Con Edison has engaged in the delay of this trial. In that respect, the Court notes a pattern of delay in Con Edison's conduct. Specifically, this Court had to issue a previous order compelling Con Edison to comply with discovery as to information it had, in fact, previously agreed to provide the plaintiff, pursuant to two separate so-ordered stipulations. In addition, Con Edison failed to comply with its obligation of notifying the plaintiff before it served the subpoena on Verizon, as required by law.
Con Edison excuses its conduct as an "oversight." The Court might be willing to accept such an excuse under different circumstances. In this case, however, Con Edison obtained information from Verizon, and then waited two months before filing the third-party action. In sum, instead of providing notice of the subpoena it was going to serve on Verizon, Con Edison filed a third-party action. This is another example of Con Edison's intentional conduct toward delaying the trial of this action, to the prejudice of the plaintiff.
This case has been in the trial scheduling part since August 20, 2018. Thus, this case is trial-ready. Discovery, however, has not yet been completed on the third-party action. The plaintiff will be subjected to further discovery and Verizon will be entitled to depose the plaintiff. See Gibson v. Transact Intern, Inc., 133 AD2d 807 (2nd Dept. 1997). In that respect, the Court notes that the plaintiff has shown that the third-party action has, prejudiced his rights to a reasonably swift trial.
The Court notes that "a trial court's discretion to sever [or dismiss] third-party claims should be sparingly exercised when the multiple claims share a close factual connection "and the interests of judicial economy and consistency of verdicts will be served by having a single trial." Alexander, 2016 McKinney's Practice Commentary, CPLR 1010 ; see also New York Schools Insurance Reciprocal v. Milburn Sales Co. , 138 AD3d 940, (2nd Dept. 2016) ; See Marbilla, LLC v. 143/145 Lexington LLC, 116 AD3d 544 (1st Dept. 2014). The plaintiff has been waiting over four years for his day in court. For this Court to allow this third-party action to continue would unduly delay this case, thus prejudicing the plaintiff. Cf. Erbach Fin. Corp. v. Royal Bank of Can. , 203 AD2d 80 (1st Dept. 1994). This is especially true given that the note of issue, previously stayed in this case to allow for discovery to continue, was lifted in August, 2018. See Skolnick v. Max Connor, LLC , supra 89 AD3d at 443 ; see also Solano v. Castro , 72 AD3d 932 (2nd Dept. 2010).
Under the circumstances of this case, the Court finds that the prejudice to the plaintiff resulting from the inevitable delay that will be caused by the completion of discovery, outweighs "the interests of judicial economy and consistency of verdicts that would be served by having a single trial." New York Schools Insurance Reciprocal v. Milburn Sales Co., supra 138 AD3d at 941 ; see also, Zili v. City of New York , 105 AD3d 949, 951 (2nd Dept. 2013) ; Annanquartey v. Passeser , supra 260 AD2d at 517. This is especially true where Con Edison has engaged in a pattern of delay in this case.
For these reasons, the plaintiff's request to dismiss the third-party action against Verizon is granted. The third-party action is dismissed without prejudice.
Turning next to Motion Sequence Number Four, the Court notes that the plaintiff is correct that Con Edison should have first provided his attorney with notice that a subpoena would be served upon Verizon. See, CPLR 2303(1)(a) ; see also, CPLR 3120(b). Con Edison, in turn, acknowledges that it should have provided the notice required by CPLR 2303(1)(a).
CPLR 2303(1)(a) and CPLR 3120(b) both require that a subpoena seeking information from a non-party be served on notice on all the parties in a civil litigations. In 1987, the First Department, confronted with a situation where a party obtained privileged material from a non-party to the serious disadvantage of the other parties and to the damage of their cases. See, In re Beiny , 129 AD2d 126 (1st Dept. 1987). In suppressing the improperly obtained documents, the First Department noted that CPLR 3120(b) cannot "be avoided by resorting to the use of covertly issued attorneys' subpoenas." In re Beiny, supra 129 AD2d at 132, citing Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3102:2, C3111:1, C3120:12, at 262, 409, 522; see also , 3A Weinstein-Korn-Miller, NY Civ Prac para. 3120.08.
Pursuant to CPLR 3103(c) a trial court may suppress information improperly obtained. Specifically, "[i]f any disclosure under this article has been improperly or irregularly obtained so that a substantial right of a party is prejudiced, the court, on motion, may make an appropriate order, including an order that the information be suppressed." CPLR 3103(c).
Here, the information obtained from Verizon by Con Edison was not privileged. Thus, there was no basis for the issuance of a protective order. In any event, there is no allegation that a substantial right of the plaintiff was prejudiced by Con Edison's failure to provide the plaintiff with notice of the instant subpoena. Compare In re Beiny, supra 129 AD2d at 126, 130-32 with In re Estate of Kochovos , 140 AD2d 180 (1st Dept. 1988). By dismissing the third-party action, this Court has dealt with Con Edison's deliberate and intentional pattern of delaying this case. It is, therefore, unnecessary to issue a suppression ruling.
The Court, therefore, declines to suppress the information that Verizon provided to Con Edison at the trial to be held in this case. Whether or not the information obtained by Con Edison from Verizon is admissible at the trial to be held in this case is an evidentiary issue that is left to the sound discretion of the trial judge.
Given the ruling dismissing the third-party action, the Court, in its discretion, also declines to sanction Con Edison.
That plaintiff's motion under Sequence Number Three to dismiss the third-party action without prejudice is, therefore, granted in accordance with this decision. The remainder of the plaintiff's motion under Sequence Number Four is denied in its entirety.
The parties shall appear at the Trial Scheduling Part, at the courthouse located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, on January 28, 2019, at 9:30 A.M., for trial.
This constitutes the decision and order of this Court.