Opinion
INDEX NO. 651183/2018
08-25-2020
RELIANT REALTY SERVICES, LLC, RENEWAL CONSTRUCTION SERVICES, LLC, and RMS PARTNERS, LLC, Plaintiffs, v. M.S. BERKOFF CO., INC., Defendant.
Rich, Intelisano & Katz, LLP, New York, NY (Steven Cramer of counsel), for plaintiffs. Spitalnik & Spitalnik, P.C., Roslyn, NY (Joshua D. Spitalnik of counsel), for defendant.
NYSCEF DOC. NO. 42 PRESENT: HON. GERALD LEBOVITS Justice MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 were read on this motion to CONSOLIDATE. Rich, Intelisano & Katz, LLP, New York, NY (Steven Cramer of counsel), for plaintiffs.
Spitalnik & Spitalnik, P.C., Roslyn, NY (Joshua D. Spitalnik of counsel), for defendant. Gerald Lebovits, J.:
The parties here are currently litigating in three different forums four actions that are related to a business dispute between the parties—this action, an action in Supreme Court, Kings County, and two actions in Supreme Court, Bronx County. Plaintiffs in this action are defendants in the other three actions. Defendant here, M.S. Berkoff Company, Inc. (Berkoff), is plaintiff in the other actions.
Plaintiffs here now move to consolidate the four actions. They also argue that if the court grants consolidation, the consolidated action should be heard in Supreme Court, New York County. Berkoff does not challenge plaintiffs' arguments in favor of consolidation, but asserts that venue in New York County would be improper. This court concludes that plaintiffs' motion to consolidate should be granted only to the limited extent that the four actions are joined for trial. The place of the joint trial will be Kings County, rather than New York County.
DISCUSSION
In assessing plaintiffs' consolidation motion, this court notes that Berkoff "concedes that there are common questions of law and fact" in all four actions between Berkoff and plaintiffs, and that "judicial economy is saved by all of these matters being litigated in one forum rather than [three] different courthouses." (NYSCEF No. 40 at 4.) In these circumstances, this court has little difficulty concluding that the four actions should be heard together.
That said, there is not a full identity of parties in the four actions—this action, for example, involves only the three plaintiffs and Berkoff, whereas the Kings County and Bronx County actions involve those four parties and a number of other party defendants as well. Moreover, Berkoff is a defendant here, a plaintiff in the Bronx County actions, and a plaintiff-counterclaim-defendant in the Kings County action; while the plaintiffs here are defendants in the Bronx County actions and defendants-counterclaim-plaintiffs in the Kings County action. In these circumstances, the appropriate course is merely to join the actions for trial, rather than fully consolidate them. (See Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332, 335 [1st Dept 2005].)
Plaintiffs contend that the place of the joint trial should be New York County. Plaintiffs acknowledge the general rule that absent "special circumstances" the "venue of the action first commenced"—here, Kings County—should be "deemed the place of the joint trial." (Ferolito v Vultaggio, 115 AD3d 541, 542 [1st Dept 2014] [internal quotation marks omitted].) But they argue that special circumstances make New York County the appropriate venue here. This court disagrees.
The First Department's caselaw on venue generally treats "special circumstances" in this context as circumstances relating to the (in)convenience of witnesses, the location of the occurrence giving rise to the action, and the location of evidence. Plaintiffs have not shown that this action presents any such "special circumstances." Plaintiffs state that they "all maintain offices in New York County." (NYSCEF No. 25 at 11.) They do not, however, claim that traveling from Manhattan to Brooklyn would be inconvenient for them or for any of the likely witnesses in the action, or that substantial documentary evidence in the case is located only in Manhattan rather than Brooklyn. Plaintiffs also identify any efficiency gains from keeping the four joined actions here, rather than sending them to Kings County.
See e.g. Lema v 1148 Corp. (176 AD3d 653, 654 [1st Dept 2019] [location of accident and plaintiffs' medical treatment]; Harrison v Harrison (16 AD3d 206, 208 [location of witnesses and evidence; connections of parties to the forum]); Teitelbaum v PTR Co. (6 AD3d 254, 255 [1st Dept 2004] [convenience of witnesses]); Lopez v Chaliwit (268 AD2d 377, 377 [1st Dept 2000] [convenience of witnesses; location of accident and plaintiff's medical treatment]; Bernstein v Silverman (228 AD2d 325, 326 [1st Dept 1996] [location of documentary evidence and of underlying transactions]; Toro v Gracin (148 AD2d 364, 365 [1st Dept 1989] [location where cause of action arose; location of witnesses and medical treatment]). Cf. Ferolito v Vultaggio (115 AD3d 541, 542 [1st Dept 2014] [location of headquarters of parties; location that courts hearing the to-be-consolidated actions determined would be the most efficient venue for adjudication].)
Plaintiffs do not state whether they have offices in Brooklyn, as well as in Manhattan.
Plaintiffs appear to suggest that venue of the joined actions should be placed in New York County because this court is the "only forum in which . . . there is active discovery." (NYSCEF No. 41 at 2.) Plaintiffs do not explain what they mean by "active discovery," or provide support for this assertion. In any event, it is unclear why the presence of ongoing discovery in this action should matter for venue purposes, assuming that the four actions are being joined for discovery and trial. --------
Plaintiffs, relying on the First Department's decision in Fields v Zweibel (36 AD2d 808 [1st Dept 1971]), assert that the joined actions should be venued here because only the action before this court sweeps in all of the issues and disputes arising out of the parties' underlying business dealings. (See NYSCEF No. 25 at 10-11; NYSCEF No. 41 at 4.) This aspect of Fields, though, is dictum: the court in Fields "note[d] that the second action herein is deeper and broader in scope than the first" only as an additional consideration beyond (i) the location of most of the witnesses in the county where the second action was brought, and (ii) the likelihood that a trial could be held much faster in the venue of the second action than in the venue of the first action. (See 36 AD2d at 809.) Numerous First Department decisions issued in the 50 years since Fields have considered the venue of joined or consolidated actions without identifying the scope of issues in the actions as relevant to venue. And plaintiffs do not identify any other First Department decisions besides Fields that apply a scope-of-issues criterion.
Crucially, plaintiffs do not explain why venue of the joined actions must be laid in New York County merely because the present action presents the broadest range of claims. The procedural and litigation history of this action have not, for example, afforded this court such extensive familiarity with the facts and issues in the case that this court would enjoy an advantage over Supreme Court, Kings County, in adjudicating the four actions after their joinder.
Accordingly, for the foregoing reasons it is hereby
ORDERED that plaintiff's motion to consolidate is granted only to the extent that this action and the other three related actions identified in plaintiffs' moving papers are hereby joined for purposes of discovery and trial; and it is further
ORDERED that the place of the joint trial shall be Supreme Court, Kings County; and it is further
ORDERED that plaintiff shall serve a copy of this order with notice of entry on all parties in the four actions; and it is further
ORDERED that plaintiff shall serve notice of entry on the office of the County Clerk, which is directed to transfer this action to Supreme Court, Kings County, and on the office of the General Clerk, which is directed to amend its records accordingly; and it is further
ORDERED that plaintiff shall serve notice of entry on the Clerk of Supreme Court, Bronx County, who is directed to transfer M.S. Berkoff Company, Inc. v Grote Street Apartments LP, et al., Index No. 24465/2017E; and M.S. Berkoff Company, Inc. v Longwood Residences, L.P., et al., Index No. 24466/2017E, to Supreme Court, Kings County; and to amend her records accordingly; and it is further
ORDERED that plaintiff shall serve notice of entry on the Clerk of Supreme Court, Kings County, who is directed to amend his records accordingly.
/s/_________, J.S.C. 8/25/2020
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