SUPREME COURT - STATE OF NEW YORK CIVIL TERM - IAS PART 34 - QUEENS COUNTY COURT SQUARE, LONG ISLAND CITY, N.Y

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1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK CIVIL TERM - IAS PART 34 - QUEENS COUNTY COURT SQUARE, LONG ISLAND CITY, N.Y P R E S E N T : HON. ROBERT J. MCDONALD Justice x ENRICO IERVOLINO, Plaintiff, Index No.: 3733/2013 Motion Date: 07/08/14 Motion No.: 67 Motion Seq.: 1 Defendants x Third-Party Plaintiffs, SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D., SUNIL H. BUTANI, PHYSICIAN, P.C., and NEW ENGLAND COMPOUNDING PHARMACY, INC. d/b/a NEW ENGLAND COMPOUNDING CENTER, Third-Party Defendants x The following papers numbered 1 to 24 were read on the motion by plaintiff, ENRICO IERVOLINO, for an order pursuant to CPLR 602(a) consolidating the above-captioned action with a second action commenced by the plaintiff in Nassau County entitled ENRICO IERVOLINO against SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D. and SUNIL H. BUTANI, PHYSICIAN, P.C., filed under Nassau County Index No /13; and for an order pursuant to CPLR 603 severing the Third-Party Plaintiffs claims against Third-Party Defendant, NEW ENGLAND COMPOUNDING CENTER on the ground that said defendant has filed for bankruptcy staying any litigation against said company; and the cross-motion of Third-Party Defendants for 1

2 an order pursuant to CPLR 1010 severing or dismissing the third party action and changing the venue of the consolidated action from Supreme Court Queens County to Supreme Court Nassau County: Papers Numbered Plaintiff s Notice of Motion-Affirmation-Exhibits Butani and Chacko s Cross-Motion-Affirmation-Exhibits Third-Party Plaintiffs Partial Opposition to Cross-Motion Third-Party Plaintiffs Affirmation in Opposition to Plaintiff s Motion Plaintiff s Reply Affirmation This is an action commenced by plaintiff, Enrico Iervolino, an employee of Bass Plumbing & Heating Corp., for damages for injuries he allegedly sustained on July 2, 2012, while working at a construction site owned by St. Mary s Hospital for Children in Bayside, New York. In addition to bringing an action against he owner of the premises, the plaintiff also asserted Labor Law violations against the general contractor, construction manager and sub-contractors. Plaintiff commenced the instant action by the filing of a summons and complaint on February 27, In November 2013, the plaintiff commenced a second action in Nassau County Supreme Court sounding in medical malpractice against Drs. Sunil H. Butani and Jeffrey Chacko. Plaintiff asserts that he sought medical treatment from said doctors for injuries he sustained in the construction accident. He alleges that the doctors were negligent in administering an allegedly unnecessary and non-indicated sacroiliac joint steroid injection. The complaint alleges that the steroid injection was contaminated with fungus resulting in the plaintiff contracting a sacroiliac joint fungal infection and septic arthritis. On April 21, 2014, the defendants in the labor law case commenced a third-party action seeking contribution against Drs. Butani and Chacko. Defendants also sought contribution from thirdparty defendant, New England Compounding Center (NECC), who, it is alleged, shipped batches of steroid medication used for epidural steroid injections from its pharmacy in Framingham, Massachusetts that were contaminated with fungus and resulted in dozens of deaths, infections and meningitis throughout the United States. The medication was administered to approximately 14,000 patients between May and September Because of the more than 3000 claims of injury and over 400 lawsuits filed against NECC, the NECC filed for bankruptcy protection on December 21,

3 Lawsuits commenced against NECC have been consolidated in a Multi- District Litigation proceeding in Federal Court in Massachusetts. In May 2014, it was announced that the owners of NECC agreed to settle the matter by providing $100 million dollars toward compensation for victims. The settlement will be implemented as part of the Chapter 11 plan. Plaintiff now moves for an order consolidating the Queens and Nassau County cases for trial as the injuries sustained by the plaintiff involve common questions of law and fact. Plaintiff also moves for an order severing any claims by third-party plaintiffs against third-party defendant NECC, pursuant to CPLR 603, on the ground that there was a bankruptcy stay in effect against NECC at the time the third-party action was commenced. Defendants/third-party plaintiffs submit papers stating that they do not oppose the motion to consolidate the Queens County and Nassau County actions against Drs. Butani and Chacko. However, third-party plaintiffs oppose the plaintiff s application to sever the third-party action against NECC because they are seeking contribution from NECC and assert that the entire case should be tried together in the interests of judicial economy. Counsel for Drs. Butani and Chacko cross-move for an order severing or dismissing the third-party complaint pursuant to CPLR 1010 on the ground that it was untimely commenced. They also move for an order changing the venue of the consolidated action to Nassau County on the ground that Drs. Butani and Chacko will not have sufficient time to complete discovery in Queens County as a Note of Issue is required to be filed by September 12, Further, counsel asserts that plaintiff is a resident of Nassau County, that the doctors maintain their professional offices in Nassau County, and that the plaintiff s medical treatment took place in Nassau County. Third-party plaintiffs oppose the motion to sever the thirdparty complaint asserting that the defendants have not shown that they will be prejudiced as a result of the third-party action. Further, counsel for Drs. Chacko and Butani appeared at a status conference on June 12, 2014 at which time outstanding discovery, IMEs and the depositions of Drs. Chacko and Butani were scheduled for September 10, Plaintiff opposes the cross-motion and requests that the NECC action be severed as the bankruptcy case will not be concluded in the near future and the construction defendants have not moved to lift the stay against NECC for this action. Plaintiff also requests that the consolidated action remain in Queens County as that is where the first action was commenced (citing Champion v. 3

4 City of New York, 203 AD2d 508 [2d Dept. 1994][the general rule for determining the venue of actions which have been consolidated, where the actions have been commenced in different counties, is that absent special circumstances, venue should be placed in the county where the first action was commenced]). Further counsel asserts that the doctors have not demonstrated any inconvenience to material witnesses by having venue placed in Queens County (citing CPLR 510). Upon review and consideration of the plaintiff s motion for consolidation, this court finds that motion to consolidate the two actions for joint trial is granted. Where common questions of law or fact exist, a motion to consolidate should be granted absent a showing of prejudice to a substantial right by the party opposing the motion (see Kally v Mount Sinai Hosp., 44 AD3d 1010 [2d Dept. 2007]; Flaherty v RCP Assocs., 208 AD2d 496 [2d Dept. 1994]). Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts (see Best Price Jewelers.Com, Inc. v Internet Data Storage & Systems, Inc., 51 AD3d 839 [2d Dept. 2008]). Here, it is clear that the interests of justice and judicial economy will be served by consolidation of the two actions for joint trial as the injuries sustained by the plaintiff allegedly arose from both the construction accident and the treatment he received for those injuries, concern the same parties, and involve common questions of law and fact (see Nigro v Pickett, 39 AD3d 720[2d Dept. 2007]). The defendants have failed to demonstrate that consolidation will prejudice a substantial right (see Scotto v Kodsi, 102 AD3d 947 [2d Dept. 2013]; Alizio v Perpignano, 78 AD3d 1087 [2d Dept. 2010]; Mas-Edwards v Ultimate Servs., Inc., 45 AD3d 540 [2d Dept. 2007]). As the discovery and deposition schedules as well as the date for filing a note of issue in Queens County have recently been extended pursuant to so-ordered stipulation, there should be sufficient time for all parties to complete discovery in an expedited fashion. The venue of the consolidated matter will be placed in Queens County as that is where venue of the first-commenced action currently lies and defendants have not shown that there will be any prejudice or inconvenience to witnesses in trying the consolidated action in Queens County (see Brown v Cope Bestway Express, Inc., 99 AD3d 746 [2d Dept. 2012]; Whiteman v Parsons Transp. Group of N.Y., Inc., 72 AD3d 677 [2d Dept. 2010]; Nationwide Assocs. v Targee St. Internal Med. Group, P.C., 286 AD2d 717 [2d Dept. 2001]). 4

5 That branch of the plaintiff s motion to sever the the action by the third party plaintiffs against third-party defendant NECC is granted. There is no disute that prior to the commencement of the third-party action, NECC had commenced Chapter 11 bankruptcy proceedings, resulting in an automatic stay pursuant to 11 USC 362 (a) of any action or proceeding against it. However, the stay does not apply to the other defendants in the third-party action, Drs. Chacko and Butrani (see Rosenbaum v Dane & Murphy, Inc., 189 AD2d 760 [2d Dept. 1993][he automatic stay provisions of the Federal bankruptcy laws do not extend to non-bankrupt codefendants]). The prejudice to the plaintiff and third-party plaintiffs in being required to await the conclusion of the bankruptcy proceeding before obtaining any remedy outweighs any potential inconvenience in severing the third-party action in its entirety (see Vasquez v New York City Health & Hosps. Corp., 100 AD3d 868 [2d Dept. 2012]). The severance shall be subject to the preservation of the defendants' equitable share allocation rights pursuant to CPLR article 16 (see Moy v St. Vincent's Hosp. & Med. Ctr. of N.Y., 92 AD3d 651 [2d Dept. 2012]; Kharmah v Metro. st Chiropractic Ctr., 288 AD2d 94 [1 Dept. 2001]; N.Y. City Asbestos Litig. v A.C. &S., 194 Misc. 2d 214 [Sup. Ct. NY Co. 2002]). Accordingly, for all of the above-stated reasons, it is hereby, ORDERED, that the plaintiff s motion to consolidate the above captioned action and the action filed in Nassau County under Index No /13 is granted, and the motion to sever the third-party plaintiff s action against third-party defendant New England Compounding Center is granted. The caption of the consolidated action shall read as follows: 5

6 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS x ENRICO IERVOLINO, Index No.: 3733/2013 Plaintiff, SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D., SUNIL H. BUTANI, PHYSICIAN, P.C., Defendants, x Third-Party Plaintiffs, SUNIL H. BUTANI, M.D., JEFFREY CHACKO, M.D., SUNIL H. BUTANI, PHYSICIAN, P.C., Third-Party Defendants x and it is further, ORDERED, that the cross-motion of the defendants/third-party plaintiffs to retain venue of the consolidated action in Nassau County is denied, and it is further, ORDERED, that the cross-motion of the defendants/third party plaintiffs for an order pursuant to CPLR 1010 severing or dismissing the entire third-party action is denied, and it is further, ORDERED, that the plaintiff herein shall serve a copy of this order with notice of entry on all parties to the actions consolidated and on the Clerk of Queens County, and it is further 6

7 ORDERED, that counsel for plaintiff shall serve a copy of this order upon the Clerk of the Nassau County, and the Clerk of the Nassau County is directed to transfer the entire file of the action under Nassau County Supreme Court Index No /13 to the County of Queens, and it is further ORDERED, that all parties are directed to adhere to the discovery schedule set forth in the so-ordered stipulation dated June 12, Dated: August 4, 2014 Long Island City, N.Y. ROBERT J. MCDONALD J.S.C. 7