

McGinty v Structure-Tone (2016 NY Slip Op 04365)





McGinty v Structure-Tone


2016 NY Slip Op 04365


Decided on June 7, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 7, 2016

Friedman, J.P., Renwick, Andrias, Gische, Webber, JJ.


1412N 307933/08 84116/09 653776/15

[*1] Thomas McGinty, Plaintiff,
vStructure-Tone, et al., Defendants. 
Structure-Tone, et al., Third-Party Plaintiffs, 
Eurotech Construction Corp., Third-Party Defendant. 
Eurotech Construction Corp., Plaintiff-Appellant, 
QBE Insurance Corp., Defendant-Respondent.


FG McCabe & Associates, PLLC, New York (Gerard McCabe of counsel), for appellant.
Rivkin Radler LLP, Uniondale (Anne M. Murray of counsel), for respondent.

Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered January 28, 2016, which denied Eurotech Construction Corp.'s motion to join QBE Insurance Corp. as a party to a personal injury action and consolidate the personal injury action with Eurotech's coverage action against QBE, unanimously affirmed, without costs.
The two actions sought to be consolidated, i.e., a personal injury action and an insurance coverage action, do not involve common questions of law or fact (CPLR 602[a]); they involve different contracts, different parties, and different factual issues (see H.H. Robertson Co. v New York Convention Ctr. Dev. Corp., 160 AD2d 524 [1st Dept 1990]).
Moreover, litigating an insurance coverage claim together with the underlying liability issues is inherently prejudicial to the insurer (see Kelly v Yannotti, 4 NY2d 603, 607 [1958]; McDavid v Gunnigle, 50 AD2d 737 [1st Dept 1975]; D'Apice v Tishman 919 Corp., 43 AD2d 925 [1st Dept 1974]). In contrast to Bridger v Donaldson (36 AD2d 915 [1st Dept 1971], affd 29 NY2d 769 [1971]) and other cases cited by plaintiff, consolidation in this case would result in a single action involving the insured, the insurance policy, and the construction of that policy.
In addition, Eurotech did not bring its coverage action against QBE until more than six years after it was named as a third-party defendant in the liability action and almost four years after plaintiff McGinty filed the note of issue and certificate of readiness in the liability action. Litigating the actions separately will allow QBE to take any necessary discovery to which it is [*2]entitled, while avoiding prejudice caused by delay to McGinty (see Ambac Assur. Corp. v Countrywide Home Loans, Inc., 94 AD3d 455 [1st Dept 2012]; Garcia v Gesher Realty Corp., 280 AD2d 440 [1st Dept 2001]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: JUNE 7, 2016
CLERK


