Opinion
Index No. 655931/2020 Motion Seq. No. 004
09-25-2024
OLDCASTLE INFRASTRUCTURE, INC., Plaintiff, v. BRONX COMMONS BUILDERS, LLC, Defendant
Unpublished Opinion
MOTION DATE 06/05/2024
DECISION + ORDER ON MOTION
HON. JOEL M. COHEN JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 004) 174, 175,176, 177, 178, 179, 180, 181 were read on this motion to CONSOLIDATE
Defendant Bronx Commons Builders LLC ("BCB") moves to consolidate this action with an action pending in Bronx County Supreme Court, bearing Index Number 804020/2024E. For the following reasons, the unopposed motion is granted.
"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, [or] may order the actions consolidated" (CPLR 602[a]). "CPLR 602(a) vests a trial court with discretion to order consolidation of actions involving a common question of law or fact," and "[c]onsolidation of actions is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based on the same facts" (Sokolow, Dunaud, Mercadier &Carreras LLP v Lacher, 299 A.D.2d 64, 73-74 [1st Dept 2002] [internal quotation marks and citations omitted]).
Under a consolidation order, the actions "are merged into a single action to be disposed of by a single decision or verdict, in the case of a jury trial, and a single judgment with one bill of costs; the new title is one which merges all the litigants into one group of plaintiffs and one group of defendants" (Padilla v Greyhound Lines, 29 A.D.2d 495, 497 [1st Dept 1968]). Further, "the venue of the action first commenced should be fixed as such place of trial in the absence of proof of circumstances requiring otherwise" (id. at 498; see also Graev v Graev, 219 A.D.2d 535, 535-36 [1st Dept 1995]; Harrison v Harrison, 16 A.D.3d 206, 207 [1st Dept 2005]; Nigro v Pickett, 39 A.D.3d 720, 722 [2d Dept 2007]).
Here, BCB has shown that consolidation in New York County is warranted. The actions contain common questions of law and fact as to the claims, and the lien foreclosure action in the Bronx County Supreme Court is related to the facts pleaded in this case. The parties are substantially the same, with the addition of the surety in the Bronx action. Plaintiff has not opposed the motion, so it cannot meet its burden to show prejudice (see Chiacchia v Nat'l Westminster Bank USA, 124 A.D.2d 626 [2d Dept 1986]; accord Progressive Ins. Co. v Vasquez, 10 A.D.3d 518, 519 [1st Dept 2004]). Finally, the action pending before this Court was the first filed, and the case in Bronx County has not yet been assigned to a judge.
Accordingly, it is
ORDERED that the motion is granted and the actions bearing Index Numbers 655931/2020 and 804020/2024E be consolidated under a single caption and index number; it is further
ORDERED that the action Oldcastle Infrastructure, Inc. v Bronx Commons Builders, LLC, Index No. 655931/2020, pending in the Supreme Court, New York County, be consolidated in this Court with Oldcastle Infrastructure, Inc. v Bronx Commons Builders, LLC et al., Index No. 804020/2024E, Bronx County; and it is further
ORDERED that the consolidation shall take place under New York County Index No. 655931/2020, and the consolidated action shall bear the following caption:
OLDCASTLE INFRASTRUCTURE, INC. f/k/a OLDCASTLE PRECAST, INC., Plaintiffs,
-against-
BRONX COMMONS BUILDERS, LLC, and FIDELITY AND DEPOSIT COMPANY OF MARYAND Defendants.
And it is further
ORDERED that, within 14 days from entry of this order, counsel for the movant shall serve a certified copy of this order upon the Clerk of the Supreme Court, Bronx County, and shall pay the appropriate fee, if any, for such transfer and shall contact the staff of said Clerk to arrange for the effectuation of the transfer in an efficient manner; and it is further
ORDERED that service upon the Clerk of the Supreme Court, Bronx County shall be made in accordance with any applicable protocol or other procedures of said county; and it is further
ORDERED that the Clerk of the Supreme Court, Bronx County, shall transfer the documents on fde under Index No. 804020/2024E to the Clerk of this Court for the purpose of consolidation; and it is further
ORDERED that the Clerk of the Supreme Court, Bronx County and the Clerk of this court shall coordinate the transfer of the documents being transferred so as to ensure an efficient transfer and to minimize insofar as practical the reproduction of such documents, including with regard to any documents that may be in digital format; 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
ORD ERED 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 this 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 such service upon the Clerk of the Court shall be made in hard-copy format if the case pending in this county is a hard-copy case or, if this case is an e-filed one, 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 this 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 transferred from the Supreme Court, Bronx County in the consolidated case file under the New York County 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 upon 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 the case pending in this county is a hard-copy case or, if the case pending here is an e-filed one, shall be made in accordance with the procedures set forth in the aforesaid Protocol', and it is further
ORDERED that counsel are directed to appear for a telephonic status conference on November 19, 2024, at 10:30 a.m. The parties are to circulate dial-in information in advance of the conference.
This constitutes the Decision and Order of the Court.