`INDEX NO. 600701/2017
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`NYSCEF DOC. NO. 55
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`SHORT FORM ORDER
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`INDEX NO.
`CAL No.
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`600701/2017
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`SUPREME COURT - STATE OF NEW YORK
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`I.A.S. PART 10 - SUFFOLK COUNTY
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`0.
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`RIGINAL
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`P R E S E N T :
`Hon.
`JOSEPH A. SANTORELLI-
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`Justice of the Supreme Court
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`MOTION DATE 5-2-17
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`7-6-17
`SUBMIT DATE
`Mot. Seq. # 01 - Mot D
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`-------—------------j--—--—-———~-------—-———-—r--------------DC
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`VINCENT H. CORTAZAR,
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`Plaintiff,
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`WHITE, CIRRITO & NALLY, LLP
`Attorneys for Plaintiff
`58 Hilton Avenue
`Hempstead, New York 11550
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`5
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`t
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`~aga1ns -
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`THE TAPIA LAW FIRM, PLLC
`Attorneysfor Defendant/ 3rd Party Plaintiff- JAMES
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`JAMES E. CORTAZAR, MICHAEL LA
`VIGNA, and KATHERINE LA VIGNA,
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`CORTAZAR
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`3456 FWD“ Street
`BrOOk‘yn’ New “1‘ 1 1208
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`Defendants.
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`g
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`PATRICIA BYRNE BLAIR, ESQ.
`Attorney for Defendants- MICHAEL LA VIGNA and
`KA THERINE LA VIGNA
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`"""""""""""""""""""""""""""""""""""""""""X
`. JAMES E. CORTAZAR,
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`9B Montauk Highway
`Blue Point, New York 11715
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`Th1rd~Party Plalntlff,
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`-against- .
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`MICHAEL HARTOFELIS
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`Pm Se 3rd Party Defendant
`4 FOXGLOVE CT
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`HOLTSVILLE, NY 11742
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`MICHAEL HARTOFELIS,
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`---—-—----------—————---—-—---—-----------—-—-—-e ------------ )(
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`. Third—Party Defendant.
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`:
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`read on this motion for summary judgment; Notice of Motion/ Order to
`Upon the following papers numbered 1- 41
`Show Cause and supporting papers 1 — 15,Nofiee—ofEross—hhfion—and—supporfing-papers-L; Answering Affidavits and
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`supporting papers___________________16—27 & 28— 37,Replying Affidavits and supporting papers 38- 41 ;Other_; fand-after-hearmg—eounscl
`m—support-and—opposed—to—tl‘remofioné-it1S,
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`In this action the plaintiff moVes for an order granting summary judgment and ordering the
`judicial sale of real property in lieu of a partition of the premises, appointing a receiver, consolidating
`this action with Michael La Vigna v Vincent H. Cortazar and James E. Cortazar, et (11., under index
`number 198 82/2004, and severing the third party action commenced by James E. Cortazar against
`Michael Hartofelis for legal malpractice. Defendants, Michael LaVigna and Katherine LaVigna,
`hereinafter referred to collectively as the “LaVigna defendants”, filed partial opposition to the motion.
`Defendant, James E. Cortazar, opposes this application in all respects.
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`INDEX NO. 600701/2017
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`FILED: SUFFOLK COUNTY CLERK 08/03/2017 09:42 AM
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`NYSCEF DOC. NO. 55
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`Cortazar v Cortazar, et a1.
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`Index # 600701/2017
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`Page 2
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`Motion for Summary Judgment and to AQQoint Receiver
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`CPLR §3212(b) states that a motion for summary judgment “shall be supported by affidavit, by a
`copy of the pleadings and by other available proof, such as depositions and written admission.” If an
`attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his
`ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts,
`cannot support or defeat a motion by summary judgment (Olan v Farrell Lines, Inc., 105 AD 2d 653,
`481 NYS 2d 370 (1St Dept., 1984; aff’d 64 NY 2d 1092, 489 NYS 2d 884 (1985); Spearman v Times
`Square Stores Corp., 96 AD 2d 552, 465 NYS 2d 230 (2nd Dept, 1983); Weinstein-Korn-Miller, New
`York Civil Practice Sec. 321209)).
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`The proponent of a summary judgment motion must make a prima facie showing of entitlement
`to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact
`from the case (Friends ofAnimals vAssociated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]).
`To grant summary judgment it must clearly appear that no material and triable issue of fact is presented
`(Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYSZd 498 [1957]). Once
`such prOof has been offered, the burden then shifts to the opposing party, who, in order to defeat the
`motion for summary judgment, must proffer evidence in admissible form .
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`. and must “show facts
`sufficient to require a trial Of any issue of fact” CPLR 3212 [b]; Gilbert Frank Corp. v Federal
`Insurance Co., 70 NY2d 966, 525 NYS2d 793, 520 NE2d 512 [1988]; Zuckerman v City ofNew York,
`49 NY2d 557, 427 NYSZd 595 [1980]). The opposing party must assemble, lay bare and reveal his
`proof in order to establish that the matters set forth in his pleadings are real and capable of being
`established (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]). Furthermore,
`the evidence submitted in connection with a motion for summary judgment should be Viewed in the light
`most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 AD2d 976,
`470 NYS2d 239 [4th Dept 1983]).
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`On a motion for summary judgment the court is not to determine credibility, but whether there ’
`exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 NY2d 338, 357 NYS2d 478,
`313 NE2d 776 [1974]). However, the court must also determine whether the factual issues presented are
`genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 AD2d 595, 559 NYS2d 354 [2d Dept
`1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then
`summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v
`Tri-Pac Export Corp., 22 NY2d 439, 293 NYS2d 93, 239 NE2d 725 [1968]; Columbus Trust Co. v
`Campolo, 110 AD2d 616, 487 NYS2d 105 [2d Dept 1985], afld, 66.NY2d 701, 496 NYS2d 425, 487
`NE2d 282).
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`The action relates to an 8 acre parcel of land on Boney Lane, Nissequogue, New York. The
`plaintiff claims that he owns the premises with defendant James E. Cortazar as tenants in common. The
`plaintiff and defendant Cortazar took a purchase money mortgage from the sellers, the LaVigna
`defendants, in the amount of $500,000.00. The plaintiff claims that he has maintained the subject
`premises at his sole cost and expense. The plaintiff and defendant Cortazar are brothers who have been
`involved in litigation for several years in Supreme Court, Queens County, involving the dissolution of a
`jointly held LLC and the sale of other real property. Defendant Cortazar filed an answer which included
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`seven affirmative defenses and three counter claims. The LaVigna defendants filed an answer which
`included five affirmative defenses, a cross-claim against defendant Cortazar and a counterclaim against
`the plaintiff.
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`Based upon a review of the motion papers the Court concludes that the plaintiff has failed to
`establlsh entitlement to judgment as a matter of law and thus the motion for summary judgment must be
`denied. Even assuming, arguendo that theplaintiff sustained his initial burden the defendants proffered
`sufficient facts to necessitate a trial.
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`The plaintiff s motion to appoint a receiver is similarly denied.
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`Motion to Consolidate
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`CPLR § 602(a) provides that “[w]hen actions involving a common question of law or fact are
`pending before a court, the court, upon motion, may order a joint trial of any or all of the matters in
`issue, may order the actions consolidated, and may make such other orders concerning proceedings
`therein as may tend to avoid unnecessary costs or delay.”
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`On or about June 28, 2004, defendant Michael LaVigna commenced a foreclosure action under
`Index number 19882/2004 entitled Michael La Vigna v Vincent H. Cortazar and James E. Cortazar, et
`al., based upon the mortgage for the subject premises. By order dated December 30, 2005, (Cohalan, J.),
`appointed Francis P. Murphy, Esq., as referee. Francis P. Murphy, Esq., filed a Referee’s Report of
`Findings dated August 18, 2009. The parties did not move to confirm the referee’s report but the referee
`moved to establish and direct payment of his fees. The referee’s. motion was granted by decision and
`order dated January 5, 2010, (Cohalan, J.). Michael LaVigna moved to renew and reargue the referee’s
`motion and the Cortazars’ cross-moved to confirm the referee’s report. The motion to renew and reargue
`was denied and the cross motion was granted by order dated January 25, 2013, (Pitts, J .). Court
`personnel marked that decision as a “Final Disposition” and it appeared that the foreclosure action was
`concluded. Michael LaVigna moved to renew and reargue the motions that resulted in the January 25,
`2013 decision and order. That motion to renew and reargue was granted by order dated October 7, 2013,
`(Pitts, J.), to the limited extent that the matter was referred back to Francis P. Murphy, Esq., as referee
`“to hear and report as to any additional damages which may have accrued since the filing of his report.”
`That decision was marked as a “Non-Final Disposition”. Referee Francis P. Murphy, Esq., passed away
`and to date there has not been a subsequent referee appointed to hear and report as to any additional
`damages which may have accrued. Since the actions involve the same property, counsel for Michael
`LaVigna joins in the request that the actions be consolidated and the actions involve common questions
`of fact as to the disbursements of any sale, a joint trial is appropriate to avoid inconsistent verdicts.
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`Accordingly it is,
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`ORDERED that this motion by plaintiff Vincent H. Cortazar for an order directing that this
`action be consolidated with Michael La Vigna v. Vincent H. Cortazar and James E. Cortazar, et al.,
`pending before this Court under Index No. 19882/2004,
`is hereby granted to the extent that the actions
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`INDEX NO. 600701/2017
`FILED: SUFFOLK COUNTY CLERK 08/03/2017 09:42 AM
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`3F DOC. NO. 55
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`will be jointly tried, provided that each joined action is ready for trial when called therefor by Presiding
`Justice of the Calendar Control Part; and it is further.
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`ORDERED that counsel for the movant shall promptly serve a copy of this Order by first Class
`mail upon all appearing parties in each joined action, and shall promptly thereafter file the affidavit(s) of
`service with the Suffolk County Clerk; and it is further
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`ORDERED that each action joined for trial shall retain a separate caption and separate court
`costs shall be paid in each action, including those costs associated with the filing of motions, Notes of
`Issue and Certificates of Readiness for Trial; and it is further
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`ORDERED that all motions interposed in each joined action shall bear a single caption reflecting
`the action in which said motion is made; however, all motions shall be served upon counsel for all
`parties appearing in each joined action; and it is further
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`ORDERED on the consent of the Honorable Arthur G. Pitts, J SC, the matter of Michael
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`La Vigna v. Vincent H. Cortazar and James E. Cortazar, et al., pending before this Court under Index
`No. 19882/2004, is transferred forthwith to the undersigned located in the Supreme Court, One Court
`Street, Room A258, Riverhead, New York. That matter being related to the current matter which is
`assigned to the undersigned; and it is further
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`ORDERED that a compliance conference in these joined actions shall be scheduled to be held on
`Thursday, September 21, 2017 at 9:30 a.m.,
`in the courtroom of the undersigned located in the
`Supreme Court, One Court Street, Riverhead, New York. Counsel for the respective parties in each
`joined action are directed to appear at that time prepared to discuss the joined actions.
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`Motion to Sever 3rd Party Action
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`CPLR 603 states: "In furtherance of convenience or to avoid prejudice the court may order a
`severance of claims, or may order a separate trial of any claim, or of any separate issue. The court may
`order the trial of any claim or issue prior to the trial of the others."
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`CPLR 1003 states, in pertinent part: "Parties may be dropped by the court, on motion of any party
`or on its own initiative, at any stage of the action and upon such terms as may be just. The court may
`order any claim against a party severed and proceeded with separately."
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`The Court in Barrett v NY City Health & Hosps. Corp., 150 AD3d 949, 950~951 [2nd Dept
`2017], held that
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`"Although it is within a trial court's discretion to grant a severance, this
`discretion should be exercised sparingly" (Shanley v Callanan Indus., 54
`NY2d 52, 57, 429 N.E.2d 104, 444 N.Y.S.2d 585; see New York Schs. Ins.
`Reciprocal v Milbarn Sales Co., Inc., 138 AD3d 940, 941, 31 N.Y.S.3d 102;
`New York Cent. Mat. Ins. Co. v McGee, 87 AD3d 622, 624, 928 N.Y.S.2d
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`360; Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507, 852
`' N.Y.S.2d 278). Severance is generally "inappropriate where the claims against
`the defendants involve common factual and legal issues, and the interests of
`judicial economy and consistency of verdicts will be served by having a single
`trial" (New York Cent. Mut. Ins. Co. v McGee, 87 AD3d at 624; see Zili v
`City ofNew York, 105 AD3d 949, 950-951, 963 N.Y.S.2d 684).
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`The action and third party action do not contain common factual or legal issues. The legal
`malpractice third party action deals with the professional advice allegedly given to defendant, James E.
`Cortazar, by his attorney, Michael Hartofelis, Esq., at the time of the purchase of the premises. The
`outcome of the partition action, whether by foreclosure sale, judicial sale or partition, does not effect the
`determination as to whether the third party defendant negligently allowed the third party plaintiff to
`“believe that the best way to protect his family through his assets was to include his brother Vincent on
`the deeds to his properties, including the property that is the subject of this litigation.” The allegation in
`the present matter as to the ownership interests of the plaintiff, Vincent H. Cortazar and the defendant,
`James E. Cortazar, does not raise the same legal issues as the allegation of negligence by the attorney.
`Therefore, this motion by plaintiff for an order pursuant to CPLR 603 severing the third party action
`filed by defendant James E. Cortazar against Michael Hartofelis, Esq., sounding in legal malpractice is
`granted. (see Moy v St. Vincent’s Hosp. & Med. On, 92 AD3d 651, 938 NYS2d 328 [2d Dept 2012]).
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`ORDERED that counsel for James E. Cortazar shall promptly serve a copy of this Order by first
`class mail upon all appearing parties in each severed action, and shall promptly thereafter file the
`affidavit(s) of service with the Suffolk County Clerk; and it is further
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`ORDERED that James E. Cortazar is directed to purchase a new Index number and file a new
`RJI for the severed action against Michael Hartofelis, Esq.; and it is further
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`ORDERED that each severed action shall have a separate caption and separate court costs shall
`be paid in each action, including those costs associated with the filing of motions, Notes of Issue and
`Certificates of Readiness for Trial; and it is further
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`ORDERED that a compliance conference in the severed action 'shall be scheduled to be held on
`Thursday, September 21, 2017 at 9:30 a.m.,
`in the courtroom of the undersigned located in the
`Supreme Court, One Court Street, Riverhead, New York. Counsel for the respective parties in the
`severed action are directed to appear at that time prepared to discuss the action.
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`Dated: July 31, 2017
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`FINAL DISPOSITION
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`X
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`NON-FINAL DISPOSITION
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