Opinion
Index Nos. 153784/2021 595079/2023 MOTION SEQ. No. 004
09-06-2024
MAURICIO CERROS, ENMA CERROS, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CITY OF NEW YORK, TULLY CONSTRUCTION CO. INC. WALSH CONSTRUCTION COMPANY II, LLC. FELDMAN LUMBER-US LBM, LLC, Defendant. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CITY OF NEW YORK Plaintiff, v. FELDMAN LUMBER-US LBM, LLC Defendant.
Unpublished Opinion
MOTION DATE 08/31/2024
DECISION + ORDER ON MOTION
HON. MARY V. ROSADO PART Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 147, 150, 151, 152, 153, 154, 155, 156, 157, 158, 159, 160, 161 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL.
Upon the foregoing documents, Plaintiffs Mauricio Cerros and Enma Cerros (collectively "Plaintiffs") motion to consolidate this action with actions pending under Index Numbers 160593/2023 and 160736/2023 is granted.
This is an action alleging injuries arising from violations of the New York Labor Law. Plaintiff was injured when an allegedly unsecured stack of lumber collapsed and fell on him. Plaintiff now seeks to consolidate this action with two other actions that he has initiated against various other defendants. The other defendants in the actions to be consolidated allegedly supplied and stacked the lumber which injured Plaintiff.
Plaintiff argues that consolidation here is appropriate as all defendants spread across the three actions may have played some role in causing Plaintiffs injury. Plaintiff argues that consolidation will preserve judicial economy and avoid duplicity, delay, and unnecessary costs. Plaintiff further argues there are common questions of law and fact since all defendants are named in relation to Plaintiffs accident when the lumber crashed down on him. Plaintiff further argues there will be no prejudice to any party from consolidation. Hofer Log & Lumber LLC ("Hofer"), a defendant in the related action bearing index number 160593/2023 filed a partial opposition. Hofer argues that it does not oppose consolidation but would like an opportunity to depose Plaintiff on liability and requests the right to depose any other party which has already been deposed. Safeguard Inc., ("Safeguard") a defendant in the related action bearing index number 160736/2023 filed opposition. Safeguard's opposition is more on the merits of its defense rather than whether consolidation is proper. Safeguard argues that there is no evidence that it is necessary in the prosecution of plaintiffs claim and simply argues the multiplicity of actions are a result of a fishing expedition.
Consolidation is appropriate where it involves the same plaintiff and where the actions arise from the same incident (Williams v Rockefeller Center Properties, 282 A.D.2d 285 [1st Dept 2001]). Further, consolidation is appropriate where the interests of judicial economy will be served and to avoid inconsistent determinations (Isa Realty Group, LLC v EBM Development Co., 212 A.D.3d 427 [1st Dept 2023]). The party opposing the motion for consolidation must establish that it will suffer substantial prejudice from consolidation (id). Here, all factors weigh in favor of consolidating the three actions. Moreover, no party opposing the motion has demonstrated substantial prejudice. Therefore, Plaintiffs' motion is granted.
Accordingly, it is hereby, ORDERED that the motion is granted and the above-captioned action is consolidated in this Court with Mauricio Cerros and Enma Cerros. vs. Jacobs Engineering New York Inc. et. al, Index No. 160593/2023 and Mauricio Cerros and Enma Cerros vs. Safeguard, Inc. et. al, Index No. 160736/2023, pending in this Court; and it is further
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ORDERED that the consolidation shall take place under Index No. 153784/2021 and the consolidated action shall bear the following caption:
MAURICIO CERROS, ENMA CERROS, Plaintiffs,
-against-
NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CITY OF NEW YORK, TULLY CONSTRUCTION CO., WALSH CONSTRUCTION COMPANY II, FELDMAN LUMBER-US LBM, LLC, JACOBS ENGINEERING NEW YORK INC., JACOBS ENGINEERING GROUP, INC., HOOVER TREATED WOOD PRODUCTS, INC., PACIFIC WOOD LAMINATES, INC., SOUTH COAST LUMBER CO., HOFER LOG & LUMBER LLC, HOFER LUMBER INTERNATIONAL PLYWOOD COMPANY LLC, MANKE LUMBER COMPANY, SHERWOOD LUMBER CORPORATION, SHERWOOD LUMBER REIPHOFF SAWMILL, INC., SAFEGUARD, INC., D & M LUMBER PRODUCTS CO., INC., and "ABC CORP.," a fictitious name but intended to be the entity that manufactured and delivered the subject stack/draft of lumber to the subject work site, and "XYZ Corp.," a fictious name but intended to be the entity that manufactured and delivered the subject stack/draft of lumber to the subject work site, Defendants
Index No. 153784/2021
NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, THE CITY OF NEW YORK Third-Party Index No.: 595079/2023 Third-Party Plaintiffs,
-against-
FELDMAN LUMBER-US LBM, LLC Third-Party Defendants
Third-Party Index No.: 595079/2023
And it is further
ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further
ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this order with notice of entry on the Clerk of the Court, who shall consolidate the documents in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further
ORDERED that counsel for the movant shall contact the staff of the Clerk of the Court to arrange for the effectuation of the consolidation hereby directed; and it is further
ORDERED that service of this order upon the Clerk of the Court shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website); and it is further
ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file the documents being consolidated in the consolidated case file under the index number of the consolidated action in the New York State Courts Electronic Filing System or make appropriate notations of such documents in the e-filing records of the court so as to ensure access to the documents in the consolidated action; and it is further
ORDERED that, within 30 days from entry of this order, movant shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office, who is hereby directed to reflect the consolidation by appropriately marking the court's records; and it is further
ORDERED that such service upon the Clerk of the General Clerk's Office shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the aforesaid Protocol; and it is further
ORDERED that counsel are directed to submit a proposed conference order to the Court via e-mail at SFC-Part33-Clerk@,nycourts.gov on or before October 23, 2024. In the event the parties are unable to agree to a proposed preliminary conference order, the parties are directed to appear for an in-person preliminary conference on October 30, 2024 at 10:00 a.m. in 60 Centre Street, Room 442.
This constitutes the Decision and Order of the Court.