Commercial Division Blog

Posted: March 20, 2023 / Written by: Jeffrey M. Eilender, Samuel L. Butt, Seth D. Allen, Joshua Wurtzel, Channing J. Turner / Categories Commercial, Summary Judgment

Former Employee Entitled to Sever Claims Awarded on Summary Judgment

In a Decision and Order, dated February 21, 2023, in Baker v. Waller Capital Corp., Index No. 655859/2017, Justice Joel M. Cohen of the New York County Commercial Division granted plaintiff’s motion to sever the claims awarded on summary judgment so that he may begin to collect the amounts awarded as guaranteed payments pursuant to his employment agreement.  The remainder of claims would proceed to trial. The Court explained: 

In a Decision and Order, dated February 21, 2023, in Baker v. Waller Capital Corp., Index No. 655859/2017, Justice Joel M. Cohen of the New York County Commercial Division granted plaintiff’s motion to sever the claims awarded on summary judgment so that he may begin to collect the amounts awarded as guaranteed payments pursuant to his employment agreement.  The remainder of claims would proceed to trial. The Court explained: 

Plaintiff moves (NYSCEF 98) to sever the claims awarded on summary judgment so that he may begin to collect the amounts awarded in the Order. Plaintiff argues that he should have been paid the amounts awarded in the Order more than six years ago and that further delay is unfair and unwarranted (Moving Brief at 4-6 [NYSCEF 99]). The Waller Defendants argue that Plaintiff seeks severance to create "settlement leverage" and that severance would result in "piecemeal litigation" (Opposition Brief at 1 [NYSCEF122]).

CPLR 3212(e) provides, in relevant part: summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on such terms as may be just. The court may also direct:

  1. that the cause of action as to which summary judgment is granted shall be severed from any remaining cause of action;

CPLR 5012 provides: The Court, having ordered a severance may direct judgment upon a part of a cause of action or upon one or more causes of action as to one or more parties.

The Court has discretion under Section 3212(e) to grant severance to a prevailing party on summary judgment absent prejudice to the opposing party (Robert Stigwood Org., Inc. v Devon Co., 44 NY2d 922, 924, 379 N.E.2d 1136, 408 N.Y.S.2d 5 [1978] ["The record in this case is completely bare of any indication that plaintiff would be in any way prejudiced if defendant is allowed to enforce its partial summary judgment"]). On these facts, the Court concludes that severance is warranted because Plaintiff has been adjudged to be entitled to specific payments that should have been made under the Employment Agreement more than six years ago and Defendants have not demonstrated that any undue prejudice will result (Lapidus v 1050 Tenants Corp., 138 AD3d 783, 786, 30 N.Y.S.3d 175 [2d Dept 2016] [citing id.]; Sheehan v Andrew Cone Gen. Adv. Agency, 176 Misc 882, 884, 29 N.Y.S.2d 317 [App Term 1st Dept 1941]).

As this case shows, strategic considerations arise in connection with motion practice. The attorneys at Schlam Stone & Dolan frequently litigate dispositive motions and advise clients on related strategic matters. Contact our attorneys at commercialdivisionblog@schlamstone.com if you or a client have questions regarding such matters.