PADILLA v. TOURO COLLEGE (2021)

Upon the foregoing papers, the motion by third-party defendant, All Pro Design & Construction Corp., (“ALL PRO”) is decided as follows.

This is an action for personal injuries. Plaintiff alleges that he was injured on June 24, 2014, in the premises located at 901 Quintin Road, Brooklyn, New York, when sheetrock which had been placed against a wall fell onto his arm. At the time of the accident, plaintiff was employed at a construction site where he was running wires for a security system.

On or about December 17, 2014, Plaintiff commenced common law negligence and Labor Law claims against Touro College (“TOURO”).

On or about April 20, 2015, TOURO commenced a third-party action against T.R. Joy & Associates Inc. (“T.R. JOY”) and ALL PRO for contractual and common law indemnity and contribution. Plaintiff served an amended verified complaint dated May 12, 2017 which added MD Drywall of NY Corp. (“MD DRYWALL”) as a direct defendant in the main action, for common law indemnification and contribution.

During the course of litigation in this matter, TOURO commenced a declaratory judgment action against ALL PRO's insurance carrier, Arch Specialty Insurance (“Arch”), seeking a declaration that Arch had the duty to defend and indemnify TOURO in the instant action. In a decision and order of the Honorable Gerald Lebovits dated May 8, 2018, it was determined that Arch had a duty to defend TOURO in the instant action.

Based on the aforementioned decision and order, counsel for TOURO and ALL PRO took steps to transfer the defense of TOURO and effectuate a discontinuance of the third-party action against ALL PRO only. To that end, a fully executed consent to change attorney was filed which substituted counsel for ALL PRO in the place and stead of counsel for TOURO. Additionally, a stipulation of discontinuance as to TOURO's third-party action against ALL PRO, only, was executed by outgoing counsel for TOURO and by counsel for ALL PRO. Plaintiff's attorney has also executed the stipulation of discontinuance, despite not having any claims against ALL PRO. T.R. JOY and MD DRYWALL have refused to execute the stipulation of discontinuance as to ALL PRO.

ALL PRO now moves for an Order pursuant to CPLR 3217, discontinuing this action as against it in the third-party action, and pursuant to CPLR 305(c) amending the caption to reflect that third-party defendant, ALL PRO is no longer a party to the third-party action.

In opposition, T.R. JOY argues that ALL PRO's motion is procedurally defective because it did not attach transcripts/key evidence or discuss the testimony. T.R. JOY, therefore, maintains that ALL PRO failed to establish its entitlement to summary judgment. Contrary to T.R. JOY's contention, summary judgment is not the legal basis for which ALL PRO seeks relief. ALL PRO has not sought any relief under CPLR 3212, and as such, and despite T.R. JOY's arguments, the standard for such a motion is wholly inapplicable to ALL PRO's motion. The actual relief sought by ALL PRO is procedural, as opposed to substantive, and the basis for ALL PRO's motion is CPLR 3217, under which the testimony of the parties with respect to their roles on the project is irrelevant.

In opposition, MD DRYWALL not only adopts and incorporates the arguments set forth by T.R. JOY above, but they argue that this motion is premature because ALL PRO has not provided them with discovery.

The determination of a motion for leave to voluntarily discontinue an action pursuant toCPLR 3217 (b) rests within the sound discretion of the court (see Expedite Video Conferencing Servs., Inc. v Botello, 67 AD3d 961, 961 [2009]). “ ‘In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted’ ” (Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836, 837 [2011], quoting Expedite Video Conferencing Servs. Inc. v Botello, 67 AD3d at 961]).

Since the filing of ALL PRO's motion, T.R. JOY has instituted a second third-party action against ALL PRO. As such, T.R. JOY has no reasonable opposition to ALL PRO's request for this Court to so-order the stipulation discontinuing TOURO's third-party action as against ALL PRO, as T.R. JOY's claims against ALL PRO have been properly preserved in the second third-party action, and T.R. JOY is not prejudiced at all by the discontinuance of the third-party action. Similarly, there is no evidence that MD DRYWALL would be prejudiced by a discontinuance. MD DRYWALL likewise failed to demonstrate that the motion was premature. The mere hope that a party might be able to uncover some evidence during the discovery process is insufficient to deny the relief sought in this action.

Accordingly, it is

ORDERED that the motion discontinuing this action as against third-party defendant ALL PRO by “so ordering” the stipulation of discontinuance with prejudice is granted; and it is further

ORDERED that the caption be amended in the third-party action to reflect that ALL PRO is no longer a party to this action.

This is the Decision and Order of the Court.

Adrian Armstrong, J.