Opinion
Index No. 650755/09
06-21-2013
SUMMIT DEVELOPMENT CORP. d/b/a SUMMIT WATERPROOFING & RESTORATION CO., Plaintiff, v. HUDSON MERIDIAN CONSTRUCTION GROUP LLC, HENRY PHIPPS PLAZA SOUTH ASSOCIATES LIMITED PARTNERSHIP, INTERSTATE MASONRY CORP., DUNLOP MASTCLIMBERS LTD., FEDERAL INSURANCE COMPANY and "JOHN DOE 1" through "JOHN DOE 10" said parties being lienors who have yet to perfect their liens and being fictitious and unknown to Plaintiff, Defendants.
DECISION/ORDER
HON. CYNTHIA S. KERN , J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for: ____________________
+------------------------------------------------+ ¦Papers ¦Numbered¦ +---------------------------------------+--------¦ ¦Notice of Motion and Affidavits Annexed¦1 ¦ +---------------------------------------+--------¦ ¦Affirmations in Opposition ¦2 ¦ +---------------------------------------+--------¦ ¦Replying Affidavis ¦3 ¦ +---------------------------------------+--------¦ ¦Exhibits ¦4 ¦ +------------------------------------------------+
Plaintiff Summit Development Corp. d/b/a Summit Waterproofing & Restoration Co. ("Summit") commenced the instant action against defendants Hudson Meridian Construction Group, LLC ("Hudson"), Henry Phipps Plaza South Associates Limited Partnership ("Henry Phipps"), Interstate Masonry Corp. ("Interstate"), Dunlop Masterclimbers Ltd. ("Dunlop"), Federal Insurance Company ("Federal") and John Does 1-10 to recover certain sums arising out of a construction project. Defendants Hudson and Federal now move to consolidate the instant action with a proceeding pending in Supreme Court, Queens County. For the reasons set forth below, Hudson's motion is denied.
The relevant facts are as follows. This action arises out of a construction project known as the Rehabilitation of Phipps Plaza South, 444 Second Avenue and 330 East 26th Street, New York, New York (the "project"). Hudson was the general contractor on the project, plaintiff was the subcontractor, Interstate and Dunlop were plaintiff's sub-subcontractors and Henry Phipps is the owner of the premises. Due to disagreements which arose regarding the project, plaintiff commenced the instant action in Supreme Court, New York County on or about December 21, 2009.
There are two related actions that were consolidated for the purposes of discovery: Summit Development Corp. d/b/a Summit Waterproofing Co. v. Hudson Meridian Construction Group LLC and Federal Insurance Company, Supreme Court, New York County, Index # 650172/09 and Summit Development Corp. d/b/a Summit Waterproofing Co. v. Hudson Meridian Construction Group LLC and Henry Phipps Plaza South Associates Limited Partnership, Supreme Court, New York County, Index # 650239/09. Plaintiff also commenced two separate actions against defendant Dunlop regarding the project. The first, Summit Development Corp. d/b/a Summit Waterproofing Co. v. Dunlop Mastclimbers Ltd., Supreme Court, New York County, Index # 602637/08, is marked settled in the court's records. The second, Summit Development Corp. d/b/a Summit Waterproofing Co. v. Dunlop Mastclimbers Ltd., Supreme Court, New York County, Index # 603706/08 has allegedly been abandoned by those parties in favor of proceeding in the instant action.
In or around June 2011, plaintiff commenced another action regarding the project in Queens County (the "Queens Action") against Interstate and Interstate's principal, Janine Frantellizzi ("Ms. Frantellizzi") entitled Summit Development Corp. d/b/a Summit Waterproofing & Restoration Co. v. Interstate Masonry Corp., Janine Frantellizzi and Anthony Cervoni, Index 700293/11 alleging causes of action sounding in fraud. Movants allege that plaintiff did not advise them about the Queens Action until August 2012 when plaintiff's principal had a discussion with Hudson's principal. However, by that time, the Queens Action had been dismissed and it was not until April 24, 2013 that the dismissal was reversed by the Second Department. See Summit Dev. Corp. v. Interstate Masonry Corp., 2013 NY Slip Op 02736 (2d Dept 2013). Hudson and Federal now move to consolidate the Queens Action with the instant action.
CPLR § 602 provides:
(a) Generally. When 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 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.However, "[e]ven where there are common questions of law or fact, consolidation is properly denied if the actions are at markedly different procedural stages and consolidation would result in undue delay in the resolution of either matter." Abrams v. Port Auth. Trans-Hudson Corp., 1 A.D.3d 118, 119 (1st Dept 2003), citing F & K Supply v. Johnson, 197 A.D.2d 814 (3d Dept 1993).
In the instant action, Hudson's motion for consolidation must be denied as consolidation would result in undue delay in the resolution of the instant action. The instant action has been pending before this court for almost four years and is nearing the close of discovery. In fact, the court most recently extended the Note of Issue deadline for the sole purpose of concluding a few remaining depositions. Additionally, in the instant action, the parties have exchanged thousands of pages of paper discovery, have responded to numerous interrogatories, have conducted over sixteen days of depositions and have appeared many times before this court. In contrast, the Queens Action is in its infancy and no discovery has taken place as the complaint in the Queens Action was only restored by the Second Department in April 2013. It was only one month ago, in May 2013, that the defendants in the Queens Action served their Answer and the parties have not yet appeared for a preliminary conference.
Even if the two cases were at the same stage of discovery, which they are not, consolidation is inappropriate because the two actions involve different legal issues. In the instant action, plaintiff's causes of action against Hudson sound in breach of contract and the claims asserted by Dunlop and Interstate arise out of their respective contractual obligations with respect to the project and stem from Hudson's alleged failure to pay plaintiff a certain sum. However, in the Queens Action, plaintiff's claims against Interstate and Ms. Frantellizzi sound in fraud only. While plaintiff admits that there is a degree of overlap with respect to the factual basis for plaintiff's claims, the legal basis is different. Moreover, Ms. Frantellizzi is not a party to the instant action and neither Hudson nor Federal, the movants here, are parties to the Queens Action. Movants' assertion that plaintiff only commenced the Queens Action in order to be deceptive is without merit as plaintiff has affirmed that the Queens Action was brought in Queens County because Ms. Frantellizzi is a resident of Queens County.
Accordingly, Hudson's motion to consolidate the instant action with the Queens Action is denied. This constitutes the decision and order of the court.
Enter: ____________________
J.S.C.