Opinion
Index 156981/2018
02-10-2022
WAVERLY STORES ASSOCIATES Plaintiff, v. WAVERLY MEWS CORP., Defendant.
Unpublished Opinion
DECISION + ORDER ON MOTION
HON. DAKOTA D. RAMSEUR JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142 were read on this motion to/for VACATE/STRIKE - NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR.
Plaintiff, Waverly Stores Associates (plaintiff), commenced this action seeking a Yellowstone injunction in order to remain as tenant in the mixed-use building located at the corner of Waverly Place and Greene Street in the Greenwich Village neighborhood of New York City under the terms of a September 1, 1980 Lease Agreement (the Lease) (Action 1). In motion sequence 004 in Action 1, plaintiff now moves for an order vacating the note of issue filed by defendant Waverly Mews Corp. (defendant) and for an order pursuant to CPLR 602, consolidating this action with another action before this court captioned Waverly Stores Associates v Waverly Mews Corp., Index No. 156981/2018 (Action 2). In motion sequence 003 in Action 2, plaintiff moves for the identical relief as in Action 1, including attorneys' fees and sanctions. Both motions are opposed.
During the duration of this action, there has been no preliminary conference, or any discovery conferences. Plaintiff filed motions for summary judgment and an extension of the injunction, and the parties attempted settlement through mediation. According to both parties, after the motion for summary judgment was denied, the parties met with another justice of this court on September 20, 2021 and addressed the issue of discovery in both actions. According to plaintiff, the judge directed the parties to meet and confer regarding discovery. On October 8, 2021 defendant filed a note of issue, stating that discovery proceedings and a bill of particulars have been waived. On October 26, 2021, plaintiff served its first discovery demands upon defendant.
Action 2 was also commenced on the ground that plaintiff was seeking a Yellowstone injunction for the same property under the same lease as in Action 1, but in response to a different notice to cure. Where Action 1 addresses the costs of a sidewalk vault project, Action 2 addresses an insurance issue. However, both cases involve the same parties, and are both before this court for resolution. There was no preliminary conference and no other discovery conferences in Action 2. In Action 2, defendant moved for summary judgment and for a vacatur of the Yellowstone injunction, prior to any discovery taking place, staying all discovery. As in Action 1, defendant filed a note of issue on October 8, 2021 in Action 2.
Both actions address questions as to whether plaintiff defaulted under the terms of the Lease. Although the substance of the violations set forth in each notice to cure/default is different, both cases hinge on the interpretation of language in the Lease between the same parties. Further, both cases are in the same stage of discovery.
Plaintiff argues that the note of issue should be vacated as defendant included a false statement therein, which concerned the plaintiffs "waiving" of discovery. Plaintiff argues this statement is patently false. Further, plaintiff argues the cases should be consolidated as they are identical in many ways and consolidation would be appropriate and efficient.
Defendant opposes plaintiffs motion to vacate the note of issue and consolidate both actions. According to defendant, plaintiffs note of issue should not be vacated as plaintiff waived discovery through its "years' long decision to not seek any discovery whatsoever" (NYSCEF doc. no 46, def mem in opp at 3). In the affidavit in support of defendant's opposition, the President of defendant points out plaintiffs failure to seek discovery at different stages of motion practice in this action. Both parties argue in the alternative for post-note discovery, allowing the note of issue to remain in place while the parties engage in discovery.
Defendant further argues that the actions should not be consolidated. Without detail, defendant takes the position that the two matters lack sufficient commonality and involve different issues of fact and law. Defendant argues for "joining" the actions, rather than consolidating them.
Pursuant to 22 NYCRR Sec. 202.21 (e), court may vacate the note of issue "if it appears that a material fact in the certificate of readiness is incorrect. ..". In reliance on this rule, the Appellate Division, First Department granted the defendant's motion to vacate the note of issue and proceed further with discovery, where "[p]laintiff's assertion that defendant waived the right to conduct the IME and further discovery is without merit" (Vargas v Villa Josefa Realty Corp., 28 A.D.3d 389, 391 [1st Dept 2006]). The court in Vargas found no evidence that defendant "refused or failed to avail itself of the opportunity to conduct the IME or the desired discovery, or willfully failed to comply with discovery orders" (id.). Indeed, "[t]he general policy of this State, is to encourage 'open and far-reaching pretrial discovery'" (Lopez v Kelly Street Realty, Inc., 106 A.D.3d 534, 535 [1st Dept 2013]).
Here, the court finds that defendant has failed to establish that plaintiff waived discovery in this action, as defendant stated in the note of issue. Further, there is no evidence that plaintiff refused the opportunity to engage in discovery or that plaintiff failed to comply with any court orders concerning discovery. Based on the showing of outstanding discovery, the court grants plaintiffs motion to vacate the note of issue. As there has been no discovery conferences as of yet in either action, and no discovery orders, and no exchange of discovery, the court will not prevent the parties from seeking appropriate discovery in this action.
Under CPLR 602(a), which governs the consolidation of related actions, provides, in part:
(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."
"The trial court has broad discretion in determining whether to order Consolidation" (Lombardi v Lombardi, 164 A.D.3d 665, 668 [2d Dept 2018]). The Appellate Division, First Department in Teitelbaum v PTR Co. (6 A.D.3d 254 ) consolidated two cases, where "[t]he two actions arose out of the same partnership agreement, the parties to each possess knowledge and information relevant to the claim in the other, and the lists of potential witnesses in the two cases are almost identical" (id. at 255, see also Cola-Rugg Enters, v Consolidated Edison Co. of N. Y., 109 A.D.2d 726, 727 [2d Dept 1985] [where actions share material questions of law or fact, "the interests of justice and judicial economy are better served by consolidation or a joint trial"]).
Here, the court finds that consolidation of these two actions is appropriate. The parties are the same, the same property is at stake, the interpretation of the same lease is at the center of each action, and the parties both have the same goal in both actions: to determine the plaintiffs failure to cure the alleged defaults with respect to the lease at issue. Furthermore, discovery is at the same stage in both cases, which will mean consolidation will not prejudice either party, or pose a delay in the resolution of either action.
The balance of plaintiff's motions for attorney's fees pursuant to 22 NYCRR 130-1.1 (a) is denied, as the papers indicate that plaintiff served their discovery demands after the note of issue was filed, and as noted above, no preliminary conference was held.
Accordingly, it is hereby
ORDERED that plaintiff's motion to consolidate Action 1 with Action 2 is granted, ORDERED that the consolidation shall take place under Index No. 156981/2018, the case with the earlier RJI, and the consolidated action shall bear the following caption:
WAVERLY STORES ASSOCIATES, Plaintiff, -against
WAVERLY MEWS CORP., Defendants.
Index No. 156981/2018
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 (60 Centre Street, Room 141 B), 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 plaintiff 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 at the address www.nycourts.gov/supctmanh); 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 (60 Centre Street, Room 119), 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 the parties shall appear at a preliminary conference on March 29, 2022 at 11:00 a.m. via Teams.
This constitutes the decision and order of the Court.