| Boeke v Our Lady of Pompei School |
| 2010 NY Slip Op 04125 [73 AD3d 825] |
| May 11, 2010 |
| Appellate Division, Second Department |
| Gerald Boeke, Respondent, v Our Lady of Pompei Schoolet al., Defendants/Third-Party Plaintiffs-Appellants-Respondents, and Martinez CleaningCompany, Appellant. Laith M. Jazrawi et al., Third-PartyDefendants-Respondents. |
—[*1] Garrity, Graham, Murphy, Garofalo & Flinn, P.C., New York, N.Y. (Stephen F. Balsamo ofcounsel), for appellant. Krentsel & Guzman, LLP (Pollack, Pollack, Isaac & DeCicco, New York, N.Y. [Brian J.Isaac and Michael H. Zhu], of counsel), for plaintiff-respondent. Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daniel S. Ratner of counsel), forthird-party defendants-respondents.
In an action to recover damages for personal injuries, the defendants Our Lady of PompeiSchool and Our Lady of Pompei Church appeal, as limited by their brief, from so much of anorder of the Supreme Court, Kings County (Schack, J.), dated September 8, 2009, as deniedthose branches of their motion in limine which were to strike the plaintiff's expert witnessdisclosures and to preclude "any reference by any witness, physician or expert to any purportedclaim to recover for 'complex regional pain syndrome' and its causes and/or effects," denied theirseparate motion to strike the answer of the third-party defendants for failure to appear forexaminations before trial, and granted the motion of the plaintiff and that branch of the crossmotion of the third-party defendants which was to sever the third-party action, and the defendantMartinez Cleaning Company separately appeals, as limited by its brief, from so much of thesame order as denied that branch of its motion which was to dismiss the cross claims insofar asasserted against it pursuant to CPLR 3211 (a) (7).
Ordered that the appeal from so much of the order as denied those branches of the motion inlimine of Our Lady of Pompei School and Our Lady of Pompei Church which were to strike theplaintiff's expert witness disclosures and to preclude "any reference by any witness, physician orexpert to any purported claim to recover for 'complex regional pain syndrome' and its causesand/or effects" is dismissed, without costs or disbursements; and it is further,[*2]
Ordered that the order is modified, on the law and thefacts, (1) by deleting the provision thereof granting the plaintiff's motion and that branch of thethird-party defendants' cross motion which were to sever the third party action, and substitutingtherefor a provision denying the motion and that branch of the cross motion, and (2) by deletingthe provision thereof denying those branches of the motion of the defendant Martinez CleaningCompany which were to dismiss the cross claims for contribution and contractualindemnification insofar as asserted against it pursuant to CPLR 3211 (a) (7), and substitutingtherefor a provision granting those branches of the motion; as so modified, the order is affirmedinsofar as reviewed, without costs or disbursements.
The appeal from so much of the order as denied those branches of the motion of Our Lady ofPompei School and Our Lady of Pompei Church (hereinafter together OLP) which were to strikethe plaintiff's expert witness disclosures and to preclude reference to any claim for complexregional pain syndrome must be dismissed because it concerns an evidentiary ruling which, evenwhen "made in advance of trial on motion papers . . . is neither appealable as ofright nor by permission" (Cotgreave v Public Adm'r of Imperial County [Cal.], 91 AD2d600, 601 [1982]; see CPLR 5701; Barnes v Paulin, 52 AD3d 754 [2008]; Citlak v Nassau County Med. Ctr., 37AD3d 640 [2007]).
The Supreme Court improvidently exercised its discretion in severing the third-party actionfrom the main action. Although OLP may have delayed in commencing the third-party action,"since the actions involve common factual and legal issues a single trial is appropriate in theinterest of judicial economy and to avoid the possibility of inconsistent jury verdicts"(Villatoro v Talt, 269 AD2d 390, 391 [2000]; see Dolce v Jones, 145 AD2d 594[1988]; Pescatore v American Export Lines, 131 AD2d 739 [1987]).
Contrary to OLP's contention, the extreme sanction of striking the answer of the third-partydefendants was not warranted because it does not appear that the third-party defendants willfullyand contumaciously failed to appear for the examinations before trial (see Cestaro v Chin, 20 AD3d 500[2005]; CPLR 3126 [3]).
The Supreme Court erred in denying those branches of the motion of the defendant MartinezCleaning Company (hereinafter Martinez) which were to dismiss the cross claims forcontribution and contractual indemnification insofar as asserted against it pursuant to CPLR3211 (a) (7) (see CPLR 3211 [e]). On June 4, 2009, Martinez settled with the plaintiff forthe sum of $400,000, and on June 10, 2009, Martinez filed with the Supreme Court a stipulationof discontinuance wherein the plaintiff and Martinez agreed that this action would bediscontinued "with prejudice" insofar as asserted against Martinez. This stipulation constituted arelease within the meaning of General Obligations Law § 15-108 since it was intended torelease Martinez from the action and served to relieve it "from liability to any other person forcontribution as provided in article fourteen of the civil practice law and rules" (GeneralObligations Law § 15-108 [b]; see Tereshchenko v Lynn, 36 AD3d 684, 685-686 [2007]).Accordingly, OLP may not recover on the cross claim for contribution. Additionally, OLP didnot oppose that branch of the motion which was to dismiss the cross claim for contribution(see General Obligations Law § 15-108 [b]; Tereshchenko v Lynn, 36 AD3d 684 [2007]), nor did it controvertthe contention that a service contract between OLP and Martinez did not contain any provisionfor indemnification. However, we note that, pursuant to General Obligations Law §15-108 (a), when a plaintiff settles an action with one defendant, the recovery against theremaining defendants shall be reduced by the amount of the settlement or by the settlingtortfeasor's equitable share of the damages, whichever is greater (see Maione v Pindyck, 32 AD3d827 [2006]; Gerdik v Van Ess,5 AD3d 726 [2004]).
The appellants' remaining contentions are without merit. Covello, J.P., Santucci, Angiolilloand Dickerson, JJ., concur. [Prior Case History: 24 Misc 3d 1246(A), 2009 NY Slip Op51892(U).]