Opinion
No. 11257/15.
11-21-2017
Trevor SARGEANT, Plaintiff, v. WALT WHITMAN MALL, LLC., Simon Mall, Walt Whitman Shops, Simon Mall d/b/a Walt Whitman Shops, Walt Whitman Mall d/b/a Simon Mall and/or Walt Whitman Shops and AAA Maintenance, LLC., Defendants.
Neal Forman, Esq., Brooklyn, for Plaintiff. Weinberg, Gross & Pergamnt LLP, Garden City, for Defendant AAA Maintenance. Stagg, Terenzi Confusione & Wabnik, Garden City, for Defendant Walt Whitman Mall.
Neal Forman, Esq., Brooklyn, for Plaintiff.
Weinberg, Gross & Pergamnt LLP, Garden City, for Defendant AAA Maintenance.
Stagg, Terenzi Confusione & Wabnik, Garden City, for Defendant Walt Whitman Mall.
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of plaintiff Trevor Sargeant, filed on October 17, 2017, under motion sequence number four for an order pursuant to CPLR 603 severing the defendant AAA Maintenance, LLC from the instant action.
-Notice of Motion
-Affirmation in support
-Exhibit 1–2
-Affirmation in opposition
Exhibit A–H
-Memorandum of law in opposition
Affirmation in reply
BACKGROUND
On September 9, 2015, Trevor Sargeant commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office. On May 3, 2016, plaintiff filed an amended complaint. By verified answer to the amended complaint with cross claims dated September 14, 2006, defendant AAA Maintenance, LLC joined issue. By joint verified answer to the amended complaint with cross claims dated June 3, 2016, defendants Walt Whitman Mall, LLC., Simon Mall, Walt Whitman Shops, Simon Mall d/b/a Walt Whitman Shops, Walt Whitman Mall d/b/a Simon Mall and/or Walt Whitman Shops (hereinafter the Whitman defendants) joined issue.
The amended complaint alleges, among other things, that on December 10, 2013, the plaintiff slipped, fell and injured himself in the Walt Whitman Mall parking lot due to a dangerous snow and ice condition caused by, among other things, the defendants' negligent maintenance of the Walt Whitman Mall parking lot.
LAW AND APPLICATION
On September 11, 2017, plaintiff received notice that the defendant AAA Maintenance, LLC, had filed for Chapter 7 bankruptcy relief and had triggered an automatic bankruptcy stay of the instant action pursuant to 11 USC § 362(a). Defendant AAA Maintenance, LLC (hereinafter the bankrupt defendant), is the snow removal company that was being utilized to clean the Walt Whitman Mall parking lot area at the time of the plaintiff's accident. Plaintiff seeks an order pursuant to CPLR 603 severing the cause of action asserted as against the bankrupt defendant.
CPLR 603 provides that in 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. It further provides that the court may order the trial of any claim or issue prior to the trial of the others.
Where a defendant in an action files for bankruptcy relief, an automatic stay does not extend to the nonbankrupt defendants; therefore, in such circumstances, it is within the discretion of the trial court to direct a severance of the action as against the bankrupt defendant ( Katz v. Mount Vernon Dialysis, LLC., 121 AD3d 856 [2nd Dept 2014] ; 11 U.S.C.A. § 362 [a] ). Generally, the balance of the equities lies with the plaintiff when severance is sought because the case against one defendant is stayed pursuant to 11 U.S.C. § 362(a), and that is particularly so in this personal injury action where a delay would be prejudicial to the plaintiff ( Katz v. Mount Vernon Dialysis, LLC., 121 AD3d 856 [2nd Dept 2014] ; citing see Rapini v. New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2nd Dept 2004] ).
The Whitman defendants contend that the existence of common issues of law and fact in plaintiff's claim against the bankrupt and non-bankrupt defendants provides a sufficient basis alone to deny the plaintiff's application. The Whitman defendants cite Kelty v. G.M.L.B Enterprises, Inc., 176 A.D.2d 483 [1st Dept 1991] ) for this proposition. They further contend that any prejudice to the plaintiff caused by the delay of the bankruptcy stay is outweighed by the potential prejudice to them by potentially inconsistent verdicts.
In 2014, however, the Appellate Division Second Department, in the matter of Katz, clarified the scope of the trial court's discretion in whether to grant a severance ( 121 AD3d 856 ). The exercise of that discretion is not limited to determining whether the bankrupt and non-bankrupt defendants share common issues of law and fact against the plaintiff, rather, it includes a balancing of the equities between the movant and the opponent of the severance.
Other than the possibility of inconsistent verdicts, the Whitman defendants did not explain how severance of the bankrupt defendant from the main action would prejudice them in defending the personal injury action as asserted against them. Furthermore, other than the delay caused by the stay, the Whitman defendants did not explain how granting the severance would prejudice them in prosecuting their cross-claims for contribution, contractual indemnification and common law indemnification against the bankrupt defendants.
CONCLUSION
Trevor Sargeant's motion for an order pursuant to CPLR 603 severing the defendant AAA Maintenance, LLC from the instant action is granted.