Simmons v Gateway I TP4 Hous. Dev. Fund Co., Inc.

2024 NY Slip Op 31752(U)

May 21, 2024

Supreme Court, New York County

Docket Number: Index No. 151541/2019

Judge: Sabrina Kraus

Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op 30001(U), are republished from various New York

State and local government sources, including the New

York State Unified Court System's eCourts Service.

This opinion is uncorrected and not selected for official

publication.
151541/2019 SIMMONS, EVELYN vs. GATEWAY I TP4 HOUSING

Motion No. 005

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 005) 125, 126, 127, 128

were read on this motion to/for SEVER ACTION .

BACKGROUND

Plaintiff commenced this personal injury/product liability action seeking damages for 

serious injuries suffered by Plaintiff as the result of an alleged defective and dangerous stove.

The summons and complaint were filed in February 2019. Discovery in this action is now

alleged by Plaintiff to be complete. However, on February 15, 2024, Robertshaw Controls 

Company (“Shaw”) notified the Court of its’ filing for Chapter 11 bankruptcy in the United 

States Bankruptcy Court for the Southern District of Texas.

Plaintiff, who has been pursuing this action for five years and is now eighty years old,

wishes to proceed to trial against the other defendants in this action, and now moves for an order

pursuant to CPLR § 3217(b), to discontinue Plaintiff’s claims against Shaw; and pursuant to 

CPLR § 407, to sever any remaining claims against Shaw from the within proceeding.

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. SABRINA KRAUS PART 57M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 151541/2019

 MOTION DATE 04/22/2024

 MOTION SEQ. NO. 005

DECISION + ORDER ON 

MOTION

EVELYN SIMMONS,

 Plaintiff, 

- v -

GATEWAY I TP4 HOUSING DEVELOPMENT FUND 

COMPANY, INC.,GATEWAY I TP4 LLC,MANHATTAN 

NORTH MANAGEMENT COMPANY, INC.,PEERLESS 

PREMIER APPLIANCE CO., TAHL - PROPP EQUITIES 

LLC,ROBERTSHAW CONTROLS COMPANY

 Defendant. 

---------------------------------------------------------------------------------X

INDEX NO. 151541/2019

NYSCEF DOC. NO. 129 RECEIVED NYSCEF: 05/21/2024

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151541/2019 SIMMONS, EVELYN vs. GATEWAY I TP4 HOUSING

Motion No. 005

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On May 20, 2024, the motion was fully briefed, marked submitted and the Court reserved

decision. The motion is granted for the reasons set forth below.

DISCUSSION

Plaintiff filed the note of issue on March 28, 2024. On April 4, 2024, Plaintiff filed a 

motion for trial preference based on her age..

On April 16, 2024, Peerless Premier Applicance Co. (“Peerless”) filed a letter requesting 

that the Court declare Plaintiff’s filings a nullity alleging the bankruptcy notification filed by 

Shaw triggered an automatic stay pursuant to Chapter 11 bankruptcy laws. Peerless further 

requested that the Court mark the matter stayed pending motion practice by Plaintiff to lift the 

stay or sever Shaw from the case.

Plaintiff, at the Court’s request, has voluntarily withdrawn her note of issue, certificate of 

readiness, and motion for trial preference pending the Court’s decision on the within motion.

It is “well settled that “[t]he automatic stay provisions of the Federal bankruptcy laws ... 

do not extend to nonbankrupt codefendants.”]. Merrill Lynch, Pierce, Fenner & Smith, Inc. v 

Oxford Venture Partners, LLC, 13 A.D.3d 89 (1st Dept. 2004).

Pursuant to CPLR 3217(b), the decision of whether to grant a motion to “voluntarily 

discontinue an action pursuant to CPLR 3217(b) rests within the sound discretion of the court.” 

Wilmington Savings Fund Society, FSB v. Moore, 220 A.D.3d 656, 656 – 57 (2nd Dep’t 2023).

“Ordinarily, a party cannot be compelled to litigate and, absent special circumstances, leave to 

discontinue a cause of action should be granted.” St. James Plaza v. Notey, 166 A.D.2d 439, 

(N.Y. App. Div. 1990).

Peerless opposes the motion. No other defendants have submitted opposition.

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Motion No. 005

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Peerless argues that the Court should deny Plaintiff’s motion because allowing Plaintiff 

to discontinue her claims against Shaw and to sever Peerless’ cross-claims against Shaw would 

unduly burden the Court and Peerless with duplicative litigation. Peerless also argues that it

would be prejudiced in its ability to defend the action.

Peerless alleges that Shaw is a component supplier to Peerless, and that Shaw supplied 

the spark ignition module component which Plaintiff claims is at issue. While Peerless denies 

any liability for product defect, to the extent Peerless is found liable, Peerless seeks an allocation 

against Shaw for CPLR Article 16 purposes and also seeks contribution and/or indemnification 

from Shaw on its cross-claims.

“It has been generally held that the balance of the equities lies with plaintiffs when one 

defendant has received an automatic stay pursuant to 11 USC § 362(a) ... and codefendants 

request a stay of the entire action.” Moy v. St. Vincent's Hosp. & Med. Ctr. of New York, 92 

A.D.3d 651, 652 (2d Dep’t 2012). The prejudice in having to wait for a trial pending lengthy 

bankruptcy proceedings is particularly pronounced for Plaintiffs who are advanced in age. Katz 

v. Mount Vernon Dialysis, LLC, 121 A.D.3d 856, 857 (2d Dep’t 2014).

Given that discovery has been completed and the action is trial ready, requiring Plaintiff

to wait the conclusion of a lengthy reorganization proceeding before having her day in court

would severely prejudice the Plaintiff and possibly entirely rob her of a day in court. Golden v. 

Moscowitz, 194 A.D.2d 385, 385 (1st Dep’t 1993); Vogric v. Pathmark Stores, Inc., 169 A.D.3d 

1096, 1098 (2d Dep’t 2019).

The motion is granted without prejudice to Peerless being permitted to seek an allocation

as to Shaw’s liability at the Simmons trial for CPLR Article 16 purposes. Vogric v Pathmark 

Stores, Inc., 169 A.D.3d 1096, 1098 (2d Dept. 2019)(severing case but finding that defendants 

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Motion No. 005

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maintain the benefit of their rights under CPLR article 16, such that if their culpability is 50% or 

less, their exposure for noneconomic damages should be limited proportionately to their share of 

fault).

CONCLUSION

WHEREFORE it is hereby:

ORDERED that Plaintiff’s motion is granted and the action is discontinued as to defendant 

ROBERTSHAW CONTROLS COMPANY, and is continued and shall proceed to trial as to the 

remaining defendants; and it is further

ORDERED that any remaining claims against ROBERTSHAW CONTROLS COMPANY,

including the cross-claims of PEERLESS PREMIER APPLIANCE CO are severed and shall be

converted to a third party action; and it is further

ORDERED that the third-party action is stayed, except for an application to vacate or 

modify said stay; and it is further

ORDERED that either party to the third-party action may make an application by order to 

show cause to vacate or modify this stay upon the final determination of, or vacatur of the stay 

issued by the Bankruptcy Court, pending before the United States Bankruptcy Court for the

Southern District of Texas, Action No. 24-90052; and it is further

ORDERED that movant is directed to serve a copy of this order with notice of entry on the 

Clerk of the General Clerk’s Office within ten days from entry and the Clerk shall mark the action 

discontinued as to ROBERTSHAW CONTROLS COMPANY, the crossclaims severed and

converted to a third-party action and said third party action stayed as provided herein; and it is 

further

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Motion No. 005

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ORDERED that such service upon the Clerk of the General Clerk’s Office shall be made 

in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk 

Procedures for Electronically Filed Cases (accessible at the “E-Filing” page on the court’s 

website)]; and it is further

ORDERED that the parties time to file dispositive motions is extended to 90 days from the

date of this order.

This constitutes the decision and order of the Court.

5/21/2024

DATE SABRINA KRAUS, J.S.C.

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

X GRANTED DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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