Opinion
1-1557/2003.
Decided August 14, 2006.
(for Techcon Lincoln General Ins. in all actions) Gately Goldman, LLP, Newton, MA, (for Techcon Lincoln General Ins. in all actions) Hession, Bekoff Cooper, LLP, Garden City, New York, (for Plaintiff in Action No. 2), Peter K. Ledwith, Esq., Lynbrook, New York, Counsel for Plaintiff.
(for Village of Lynbrook in Action No. 1) Morris, Duffy, Alonso Faley, Esqs., New York, New York, (for Cameron Engineering), L'Abbate, Balkan, Colavita Contini, LLP, Garden City, New York, (for Techcon in Action No. 2), Ahmuty, Demers McManus Esqs., Albertson, New York, Counsel for Defendant.
Plaintiff in Action No. 3 Carlo Lizza Sons Paving, Inc. ("Lizza") moves for a serverance and a separate trial.
There are three separate, identical motions to sever. Two motions have been filed under Index No. 7150/04. They have been designated as Motion Seq. 1 and 2 under that Index Number. The third motion has been designated as Motion Seq. 1 under Index No. 1007/2004.
BACKGROUND
These actions all arise out of a road improvement project in the Village of Lynbrook.
In or about May 2002, Techcon Contracting, Inc. ("Techcon") entered into a contract ("Contract") with the Village of Lynbrook ("Lynbrook") pursuant to which Techcon was to perform roadway improvement work. Techcon was to be paid in accordance with unit prices established by the contract.
Cameron Engineering Associates, LLP ("Cameron") was retained by Lynbrook as the engineer for the project.
In June 2002, Techcon entered into a sub-contract with Lizza pursuant to which Lizza was to perform the asphalt paving work required for the project. The Lizza subcontract required Lizza to perform its work in accordance with the terms and conditions of the Contract.
In June 2002, Techcon submitted a schedule to Lynbrook and Cameron regarding the Contract work. The schedule indicated Techcon would be performing prep work relating to the asphalt paving on several streets at the same time. This would permit Lizza to perform its paving work in a continuous manner.
Cameron and Lynbrook did not object to this schedule or procedure. Techcon commenced work in accordance with the schedule.
Techcon claims that after it began to work on this schedule, Cameron and Lynbrook interfered with the work by preventing Techcon from doing paving work on numerous streets at the same time. Cameron and Lynbrook required to Techcon to complete the paving work on one street before it was permitted to start the paving work on another street. As a result, Techcon asserts the paving work was done in short segments.
This procedure is alleged to have created problems with Lizza. Techcon asserts that Lizza failed or refused to perform work on the project when requested because the method being required by Cameron and Lynbrook was less efficient and more costly. Techcon advised Lizza that its failure to perform the work how and when requested would result in Lizza being defaulted. If Lizza defaulted, Techcon indicated that it would hold Lizza responsible for all damages arising from the default.
Techcon asserts that Lizza's failure to perform the paving as requested resulted in Techcon defaulting Lizza. Techcon was required to perform the paving work with its own work force and at its own expense. Techcon claims that Lizza's failure to perform the paving resulted in the job being delayed. Techcon further claims that it was terminated by Lynbrook at least in part because of the delays in getting the streets repaved and open for traffic.
Lizza asserts it suspended its work on the job because it had not been paid by Techcon.
Action No. 1, which is captioned Techcon Contracting, Inc. v. Incorporated Village of Lynbrook and Cameron Engineering Associates, L.L.P. (Index No. 1157/2003). In Action No. 1, Techcon seeks to recover damages sustained as a result of its being wrongfully terminated and other damages arising from the manner in which Techcon was terminated.
Instead of asserting a counterclaim against Techcon in Action No. 1, Lynbrook commenced Action No. 2, (Index No. 1007/2004) in which it seeks to recover the additional costs it claims to have incurred to repair the work Techcon allegedly did improperly and the additional costs incurred in retaining another contractor to finish the work.
In Action No. 3, (Index No. 7150/2004), Lizza seeks to recover the balance allegedly due it for work performed in connection with the project. Techcon has interposed counterclaims in Action No. 3 seeking to recover from Lizza damages sustained as a result of Lizza's failure to properly and timely perform its sub-contract.
DISCUSSION
CPLR 603 grants the court the discretion to order a severance for. convenience or to avoid prejudice. Duch v. Giacquinto, 15 AD2d 20 (3rd Dept. 1961). A severance will not be granted when the convenience of disposing of all of the issues involved in the litigation outweighs any possible prejudice to the party seeking the severance. Klein v. City of Long Beach, 154 AD2d 346 (2nd Dept. 1989); and Eugene J. Busher Co. v. Galbreath-Ruffin Realty Co., 16 AD2d 750 (1st Dept. 1962).
Lizza seeks a severance because (1) it will be significantly prejudiced if the severance is not granted; (2) the common issues of law and fact are minimal; and (3) no other party will be harmed by a severance. Lizza asserts that its "simple" claim to recover for work, labor and materials rendered on its contract with Techcon and to foreclose on its mechanics lien is being unduly delayed by complex and complicated discovery involved in the Actions No. 1 and 2. Lizza further asserts that it will incur legal fees disproportionate to its claim if it is required to participate in discovery and a trial at which issues unrelated to its claim are litigated.
However, Lizza's motion does not address the issues raised by Techcon's affirmative defenses and counterclaims and how central those issues are in Actions Nos. 1 and 2. One of the reasons asserted by Lynbrook and Cameron for terminating Techcon for cause was delays in the work which are claimed to be Lizza's fault. Techcon alleges a significant factor in the delay in the progress of the work relates to Lizza's failure to perform the paving in a timely and workmanlike manner. Techcon asserts part of Lynbrook's claim for damages in Action No. 2 involves charges incurred by Lynbrook to repair defects in the work performed by Lizza.
Techcon specifically raises these issues as both affirmative defenses and counterclaims in Action No. 3. The sub-contract between Techcon and Lizza incorporated by reference the terms of the contract between Techcon and Lynbrook. Therefore, Lizza was required to perform the paving in accordance with the specifications contained in the contract between Techcon and Lynbrook. Techcon's affirmative defenses/counterclaims specifically place in issue Lizza's failure to perform the work in accordance with the terms of contract. Techcon seeks to recover from Lizza any damages sustained as a result thereof.
Additionally, part of Techcon's claim in Action No. 1 seeks to recover money due from Lynbrook for work performed by Lizza.
Issues which have a direct bearing in Actions Nos. 1 and 2 will necessarily be decided in Action No. 3.
Since the issues in these actions are intertwined, judicial economy and consistency of verdicts indicate that severance is inappropriate. See, Jones-Ledbetter v. Biltmore Auto Sales, Inc., 239 AD2d 390 (2nd Dept. 1997); and Crosstt v. Natali, 60 Misc 2d 312 (Sup.Ct. Jefferson Co. 1969).
Accordingly, it is,
ORDERED, that Lizza's motion for a severance is denied.
This constitutes the decision and Order of the Court.