Spicer v. Garda World Consulting (UK) Ltd. ( 2021 )

Spicer v Garda World Consulting (UK) Ltd. (2021 NY Slip Op 05681)

Spicer v Garda World Consulting (UK) Ltd.

2021 NY Slip Op 05681

Decided on October 19, 2021

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 and Entered: October 19, 2021
Before: Gische, J.P., Webber, Mazzarelli, Moulton, Pitt, JJ.

Index No. 655352/17 Appeal No. 14408-14408A-14408B Case No. 2021-02410, 2021-02413

[*1]Timothy Simon Spicer et al., Plaintiffs-Respondents,

v

Garda World Consulting (UK) Limited, Defendant-Appellant.



Garda World Consulting (UK) Limited, Counterclaim Plaintiff-Appellant,

v

Timothy Simon Spicer et al., Counterclaim Defendants-Respondents.

Skadden, Arps, Slate, Meagher & Flom LLP, New York (Michael P. Richter of counsel), for appellant.

Chaffetz Lindsey LLP, New York (Sanford (Sandy) Litvack of counsel), for respondents.

Order, Supreme Court, New York County (Andrew Borrok, J.), entered on or about June 3, 2021, which granted plaintiffs' motion to sever their declaratory judgment claim from defendant GardaWorld Consulting (UK) Limited's counterclaims, unanimously affirmed, with costs. Judgment, same court and Justice, entered June 29, 2021, in favor of plaintiffs against defendant on the declaratory judgment claim, on the terms set forth in an order, same court (Charles E. Ramos, J.), entered August 23, 2018, which granted plaintiffs' motion for summary judgment on that claim, and supplemented by order, same court and Justice, entered September 12, 2018, unanimously affirmed, with costs.

The motion court providently exercised its discretion in severing defendant's counterclaims for fraud and aiding and abetting fraud from plaintiffs' declaratory judgment claim (CPLR 3212[e][1]). The counterclaims are not inextricably intertwined with or inseparable from the declaratory judgment claim (see European Am. Bank v Surgical Consultants, 308 AD2d 419, 419 [1st Dept 2003]; Banco do Estado de Sao Paulo, S.A. v Mendes Jr. Intl. Co., 249 AD2d 137, 138 [1st Dept 1998]). The declaratory judgment claim involves contract interpretation of a purchase and sale agreement, while the counterclaims involve alleged material misrepresentations made during contract negotiations leading up to the purchase and sale agreement. In addition, most of the plaintiffs in this action are not counterclaim defendants and would be prejudiced if severance were denied (see CPLR 603).

Supreme Court properly entered judgment (CPLR 5012; see Spicer v GardaWorld Consulting (UK) Ltd., 181 AD3d 413 [1st Dept 2020]).

We have considered defendant's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: October 19, 2021