ELSA SAMAYOA, deceased, Action 1

Transcription

1 FILED: NEW YORK COUNTY CLERK 05/09/2012 INDEX NO /2010 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 05/09/ c SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x YOLANDA MERO, as Administrator of the Estate of Index No.: /10 ELSA SAMAYOA, deceased, Action 1 Plaintiff, ANNA VUKSANOVIC and CACO SON REALTY CORP., AFFIRMATION IN PARTIAL OPPOSITION Defendants ANNA VUKSANOVIC and CACO SON REALTY CORP., Third Party Plaintiffs, GEORGE DEGAN, Third Party Defendant x SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x NEW YORK MARINE AND GENERAL Index No.: /11 INSURANCE COMPANY a/s/o CACO & SONS Action 2 REALTY CORP., -against- -against- -against- GEORGE DEEGAN. Plaintiff, Defendant. x

2 Martin J. Moskowitz, an attorney duly licensed to practice law before the courts of this State, affirms under penalty of perjury as follows: 1. I am associated with Gannon, Rosenfarb, Bailetti & Drossman, attorneys of record for DefendantslThird-Party Plaintiffs in action #1, Anna Vuksanovic and Caco Son Realty Corp. (collectively "Caco"), and have personal knowledge of the matter set forth herein by virtue of a review of the file maintained in this office. I submit this affirmation in partial opposition to the motion of third-party defendant George Deegan in action #1 to consolidate the case for all purposes, joint discovery and joint trial. Caco has no objection to the actions being consolidated for joint discovery. However, Caco would be prejudiced if the actions were consolidated for joint trial. 2. The suit involves a fire that initiated in the apartment of tenant George Deegan at 3155 Broadway, in Manhattan, which premise is owned by Caco.1 The plaintiff-decedent Elsa Samayoa lived a floor above Mr. Deegan and was allegedly hospitalized with smoke inhalation and died in the hospital. There is a wrongful death negligence action against Caco, who impleaded Mr. Deegan into that action for his being responsible for causing the fire.2 There is also a separate property damage claim where New York Marine and General Insurance Company ("New York Marine") paid first party benefits to Caco for its damages to its building and business and now the carrier seeks $323,433,91 from Mr. Deegan in a subrogation action.3 3. Caco recognizes the benefit of all parties participating in one discovery to stream-line that process and spare the various entities from having to separately pursue documents and transcripts, etc. from the other action. However, it would be prejudicial 1 Exhibit A to motion. 2 Exhibit B to motion. 3 Exhibit C to motion. 2

3 to Caco if the insurance carrier's subrogation action was tried in front of the same jury. The mention or even tacit suggestion of Caco having insurance coverage would create the perception of insurance being available to compensate plaintiff and would be prejudicial and proper grounds for a mistrial. That the plaintiff insurance company New York Marine a/s/o Caco is trying to get its money out of Mr. Deegan while plaintiff is trying to get money out of Caco, creates the perception of the existence of an insurance carrier behind Caco and would lead a jury to believe that there is insurance company money to compensate plaintiff in the underlying action #1. The logic becomes that if a jury is to award $323,433,91 or some part of that amount to New York Marine a/s/o Caco they can at least see that the insurance carrier for Caco pays some part of that money to the plaintiff in the wrongful death case. 4. Moreover, $323,433,91 is a considerable amount of money. That New York Marine a/s/o Caco seeks such a sizeable amount of dollars may influence a jury to rationalize how to award money damages; i.e., if $323,433,91 is awarded to the carrier than half or some other sizeable number can be awarded to plaintiff and everyone makes out. The perception is that the carrier should not complain because its money awarded from Mr. Deegan that the carrier would make payment from to satisfy plaintiff. This scenario of the insurance carrier in the subrogation property damage action being at the same table, participating in the same trial, is thus, extremely prejudicial. 5. It is well settled that personal-injury actions should not be tried with insurance-related actions, even where there are common factual issues, due to the inherent prejudice in permitting a jury to know that there may be insurance covering any damage award. See Kelly v. Yannott, 4 N.Y.2d 603, , 176 N.Y.S.2d 637 (1958); 3

4 Christensen v. Weeks, 15 Ad.3d 330, 790 N.Y.S.2d 153 (2d Dep't 2005); Emmetsberger v. Mitchell, 7 AD.3d 483, 775 N.Y.S.2d 876 (2d Dep't 2004); Golfo v. Loevner, 7 AD.3d 568, 777 N.Y.S.2d 159 (2d Dep't 2004); Schorr Bros. Oev. Corp. v. Cont'lns. Co., 174 AD.2d 722, 573 N.Y.S.2d 874 (2d Dep't 1991); Transam. v. Tolis, Inn, Inc., 129 AD.2d 512, 513, 514 N.Y.S.2d 351 (1st Dep't 1987). In Kelly, the Court of Appeals explained the potential for prejudice as follows: At the very beginning of the trial, then, the jury would know that 'insurance' was involved in the case. The following is illustrative of the prejudice which might well be visited upon the third-party defendant as a consequence of such knowledge. The jury might be more disposed than otherwise, if it saw fit to render a verdict in favor of the plaintiffs (and especially if it chose to award a generous verdict), to resolve the question of insurance coverage against the insurance company, or, if the jury saw fit to resolve the question of insurance coverage against the insurance company, knowing then that the insurance company (and not the defendant-respondent) would be ultimately liable, it might be more disposed than otherwise to render a verdict in favor of the plaintiffs. It is not the fact of a jury trial which constitutes the basis for the claim of prejudice here, but it is the fact that the issues in both the main and third-party actions will be passed upon by the same jury. 4 N.Y.2d at While the Kelly case addresses a separate action involving whether there is or is not insurance coverage, the same issue of a jury knowing about the insurance "at the very beginning" of the trial would be the source of prejudice. Id. at 607. The scenario of prejudice due to the carrier's $323,433,91 claim in the suit, i14 supra, would still play out. It is for this reason that not even the consolidation of the liability portion of the case in a bifurcated trial, would be satisfactory to avoid prejudice. Once the jury knows that New York Marine a/s/o Caco is looking to get their money, but Caco is seeking to deny plaintiff money, when there is insurance or the suggestion of insurance, the prejudice has resulted. As long as the same jury that heard liability for both cases also hears damages in the wrongful death case, the prejudice is inherent. 4

5 7. It is irrelevant whether the insurance action is about whether there is coverage or whether the carrier is entitled to damages in its subrogation action. In either case a joint trial will alert the jury that the defendant has or may have insurance, which is prejudicial and grounds for a mistrial, due to its potential affect in causing an adverse verdict. See Kelly, 4 N.Y.2d at 607. Indeed, in Medick v. Milers Livestock Mkt. Inc., 248 AD.2d 864, 669 N.Y.S.2d 776 (3d Dep't 1998), the Court denied a motion to consolidate where an insurer sought to merge its subrogation action for reimbursement of No-Fault payments with the personal injury action, involving the underlying car accident. The plaintiff in Medick was a passenger who was injured in a vehicle collision with livestock from Millers Livestock Market. Id. at 865. The plaintiff sued the driver and the livestock market and the driver's insurance carrier sued the livestock market to recuperate its No-Fault payments. The Court, in denying the consolidation, found that "it is likely that consolidation would bring to the jury's attention the existence of liability insurance in the personal injury action." Id. 8. Similarly, in Krieger v Ins. Co. of N. Am., 66 AD.2d 1025,411 N.Y.S.2d 730 (4th Dep't 1978) the Court found "(t)he injection of the issue of insurance in the negligence case, particularly where plaintiff is demanding damages well in excess of defendant Grasso's liability coverage, is inherently prejudicial and should be avoided". Here, plaintiff is seeking damages for a lengthy hospitalization and ultimately wrongful death and the fact that New York Marine a/s/o Caco is seeking a jury award of $323,433,91, will likewise be inherently prejudicial and should not be allowed in the wrongful death suit. The purpose of a consolidation is to streamline the litigation process, but when such a consolidation is on such tenuous grounds as here, it will only 5

6 result in extensive motion and appellate practice and any trial may be subject to remand. See Brennan v. Felter, 48 AD.2d 846, 369 N.Y.S.2d 175 (2d Dep't 1975) (testimony of inadequate insurance of a party was prejudicial introduction of insurance into the trial, resulting in a new trial); MacOormand v. Auchenpaugh, 29 AD.2d 1022, 289 N.Y.S.2d 493 (3d Dep't 1968) (even the suggestion of the existence of insurance is grounds for a new trial); Rendo v Schermerhorn, 24 AD.2d 773, 263 N.Y.S.2d 743 (3d Dep't 1965). From a practical point of view, the contested consolidation will not accomplish its procedural benefit of streamlining the process, like the consolidated discovery will, where the joint trial may lead to appellate practice and a second trial. Procedural benefits should not be allowed to trump substantive prejudice. Here, like the cases above, the consolidation could lead to a remand for a further trial, thereby, eliminating any procedural benefit. WHEREFORE DefendantslThird-Party Plaintiffs in action #1, Anna Vuksanovic and Caco Son Realty Corp., respectfully request that the Court issue an Order granting the consolidation for the purposes of joint discovery, only, but denying the portion of the motion for a joint trial, and for such other, further, and different relief as this Court deems just and proper. Dated: New York, New York May 9,2012 / ',' /,/,-") :'1 '/;:' /./ /' J By: ~;:J//;'/// /, d"'/" Martin J. Moskotifz Gannon, Rosenfarb, Bailetti & Drossman Attorneys for Defendants Anna Vuksanovic and Caco Son Realty Corp. 100 William Street - ih Floor New York, New York (212) "- 6

7 TO: Ross & Hill Attorneys for Plaintiff 16 Court Street - 35th Floor Brooklyn, New York (718) Vaccaro Payne, LLP Attorneys for Third Party Defendant George Deegan i/s/h/a George Degan 225 West 14th Street - Suite 2 New York, New York (212) Speyer & Perlberg, LLP Attorneys for Plaintiff in Action Broadhollow Road - Suite 250 Melville, New York (631) George Deegan, Pro se 3155 Broadway, Apt. 18 New York, New York