Opinion
2014-03-18
John M. FEROLITO, et al., Plaintiffs–Respondents, v. Domenick J. VULTAGGIO, et al., Defendants–Appellants. [And a Related Action and Proceeding].
Cadwalader Wickersham & Taft LLP, New York (Louis M. Solomon of counsel), for appellants. Boies, Schiller & Flexner LLP, New York (Nicholas A. Gravante, Jr. of counsel), for respondents.
Cadwalader Wickersham & Taft LLP, New York (Louis M. Solomon of counsel), for appellants. Boies, Schiller & Flexner LLP, New York (Nicholas A. Gravante, Jr. of counsel), for respondents.
MAZZARELLI, J.P., SWEENY, ANDRIAS, MANZANET–DANIELS, KAPNICK, JJ.
Order, Supreme Court, New York County (Martin Shulman, J.), entered June 25, 2013, which, insofar as appealed from, granted plaintiffs' motion and defendants' cross motion for consolidation to the extent of consolidating claims for corporate dissolution under Business Corporation Law (BCL) § 1104, currently being heard in a matter Ferolito v. Vultaggio (Index No. 600396/08, Sup. Ct. N.Y. County) (the BCL Dissolution Action) and a common-law dissolution action entitled Ferolito v. Vultaggio (Index No. 100568/11, Sup. Ct. N.Y. County) (the Common Law Dissolution Action) with an LLC dissolution action entitled Ferolito v. AriZona Beverages USA, Inc. (Index No. 4058/12, Sup. Ct. Nassau County, Comm. Div. [Timothy S. Driscoll, J.] ) and, as an incident to consolidation, changed the venue of the BCL and Common–Law Dissolution Actions from Supreme Court, New York County, to Supreme Court, Nassau County, unanimously affirmed, without costs.
The motion court providently exercised its discretion in conferring with the Justice presiding over the related action pending in Supreme Court, Nassau County, and, upon such consultation, in consolidating the actions and placing venue for the consolidated matters in Supreme Court, Nassau County ( see River Bank Am. v. Daniel Equities Corp., 205 A.D.2d 476, 476, 614 N.Y.S.2d 11 [1st Dept.1994]; Williams v. City of New York, 191 A.D.2d 217, 218, 594 N.Y.S.2d 200 [1st Dept.1993] ). “Although as a general rule the venue of the action first commenced should be deemed the place of joint trial” ( Fields v. Zweibel, 36 A.D.2d 808, 809, 320 N.Y.S.2d 309 [1st Dept.1971] [internal punctuation omitted]; see Ali v. Effron, 106 A.D.3d 560, 560, 967 N.Y.S.2d 11 [1st Dept.2013] ), “special circumstances” here warrant departure from this general rule ( Fields, 36 A.D.2d at 809, 320 N.Y.S.2d 309;see Yasgour v. City of New York, 169 A.D.2d 673, 674–675, 565 N.Y.S.2d 51 [1st Dept.1991] ). Among the circumstances warranting placing venue in Nassau County were the fact that it is the site of the headquarters of the subject entities ( see Williams, 191 A.D.2d at 217, 594 N.Y.S.2d 200;Pipitone v. Zweig, 163 A.D.2d 4, 4, 557 N.Y.S.2d 329 [1st Dept.1990] ) and, most critically, the fact that, upon consultation with the potentially receiving Justice,the motion court determined that the consolidated matters could be most efficiently handled and tried in Nassau County ( see Yasgour, 169 A.D.2d at 675, 565 N.Y.S.2d 51;Fields, 36 A.D.2d at 809, 320 N.Y.S.2d 309).
Defendants have failed to establish that they will suffer any substantial prejudice as a result of consolidation in Nassau County ( see Ali, 106 A.D.3d at 560, 967 N.Y.S.2d 11;Williams, 191 A.D.2d at 218, 594 N.Y.S.2d 200).
Defendants point to a never-appealed order entered in Supreme Court, New York County, in November 2010 (the 2010 Consolidation Order), which transferred the BCL Dissolution Action from Nassau County and consolidated it with the first-filed action between the parties in New York County. Defendants argue that, under the law of the case doctrine, the 2010 Consolidation precludes plaintiffs from seeking to venue the consolidated matters here in Nassau County. This argument is without merit. Mechanically the law of the case doctrine is similar to collateral estoppel, in that both require that an issue have been actually decided in order to pose a bar in a later proceeding ( see Scofield v. Trustees of Union Coll., 288 A.D.2d 807, 808, 734 N.Y.S.2d 262 [3d Dept.2001] ). The issue of whether the BCL and Common–Law Dissolution Actions should be consolidated with the LLC Dissolution Action in Nassau County was not decided in the 2010 Order, since the latter two actions had not yet been commenced. Accordingly, the 2010 Consolidation Order does not have any application here under the law of the case doctrine.
We have considered defendants' remaining arguments and find them unavailing.