Koko Contr., Inc. v U.W. Marx, Inc.

[*1] Koko Contr., Inc. v U.W. Marx, Inc. 2009 NY Slip Op 51806(U) [24 Misc 3d 1239(A)] Decided on August 10, 2009 Supreme Court, Suffolk County Mayer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 10, 2009
Supreme Court, Suffolk County

Koko Contracting, Inc., Plaintiff(s),

against

U.W. Marx, Inc., CONTINENTAL CASUALTY COMPANY and CITY SCHOOL DISTRICT OF PEEKSKILL, Defendant(s).



40201-2007



Milber Makris Plousadis & Seiden, LLP

Attorneys for Plaintiff

1000 Woodbury Road

Woodbury, New York 11797

Mastropietro-Frade, LLC

Attorneys for Defendants U.W. Marx and Continental Casualty Company

63 Franklin Street

Saratoga Springs, New York 12866

Peter H. Mayer, J.

It is ORDERED that the motion (001) by defendants, U.W. Marx, Inc. and Continental Casualty Company (hereinafter "Marx" and "Continental," respectively), for an order dismissing this action pursuant to CPLR 3211(a)(4) is hereby denied; and it is further

ORDERED, that the branch of the motion (002) by plaintiff, Koko Contracting, Inc. [*2](hereinafter "Koko"), for an order pursuant to CPLR §602(a) and CPLR §510(3) directing that this action be joined for trial with the Rensselaer County Action, U.W. Marx, Inc. V Koko Contracting, Inc., Rensselaer Index No. 223734-2007, is hereby granted to the extent set forth herein, and the venue of this Suffolk action is hereby transferred to Rensselaer County; and it is further

ORDERED that counsel for Koko shall serve a copy of this Order upon all appearing parties in each joined action, upon the Rensselaer County Clerk, as well as upon the Suffolk County Clerk with the direction that the file located there under Suffolk County Index No.40201-2007 be forwarded and transferred to the Clerk of Rensselaer County under an index number to be assigned by the Rensselaer County Clerk, for all further aspects of this case; and it is further

ORDERED that each action joined for trial shall retain a separate caption and separate court costs, including those costs attendant with the filing of Notes of Issue and Certificates of Readiness for trial, shall be paid in each action; and it is further

ORDERED that all motions interposed in each joined action shall bear a single caption reflecting the action in which said motion is made; however, all motions shall be served upon counsel for all parties appearing in each joined action; and it is further

ORDERED that all counsel in each action shall contact the Court Clerk, Rensselaer County, to obtain a conference date for each joined action so as to establish one timetable for discovery in these matters; and it is further

ORDERED that all counsel shall appear at the time of said conference ready to enter into and bind their parties to a discovery order, except as to those items that have already been agreed upon and exchanged by and between the parties.

Prior to May 3, 2006, the defendant, U.W. Marx, Inc. ("Marx"), entered into an agreement as general contractor to the defendant, City School District of Peekskill, for construction and improvement work to Peekskill New Middle School, located in Peekskill, New York. Thereafter, Marx entered into a May 3, 2006 subcontract agreement with the plaintiff, Koko Contracting, Inc. ("Koko"), whereby Koko agreed to perform certain construction services related to the improvement project. As a result of Koko's alleged failure to perform its obligations under the subcontract, Marx terminated the agreement and commenced an action against Koko in Rensselaer County under index number 223734-2007, for damages allegedly incurred as a result of Koko's alleged breach. The action in Rensselaer was commenced by summons with notice, filed by Marx on December 13, 2007, who then timely served a complaint pursuant to Marx's January 18, 2008 notice of appearance and demand for complaint. On December 28, 2008, Koko commenced this Suffolk County action by the filing of a summons and complaint in the Suffolk County Clerk's office under index number 40201-2008. [*3]

The motion by Marx seeks an order dismissing this Suffolk action, pursuant to CPLR 3211(a)(4), on the grounds that the Rensselaer action was commenced before this Suffolk action. Marx also urges dismissal on the basis of the venue provision of the subcontract, which states in relevant part at paragraph 17 that "[a]ny action or proceeding brought with respect to any matter arising out of this contract shall be brought in Supreme Court, State of New York, County of Rensselaer . . ." In opposition, Koko contends that where, as here, an action is commenced by service of a summons with notice only, such action is not a "prior action pending" for purposes of CPLR 3211(a)(4). Therefore, Koko argues, its Suffolk action precedes Marx's Rensselaer action because its Complaint in the Suffolk action was served prior to service of Marx's Complaint in the Rensselaer action.

CPLR 3211(a)(4) provides that a party may move for dismissal of one or more causes of action on the ground that "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." CPLR 3211(a)(4) vests a court with broad discretion in considering whether to dismiss an action on the ground that another action is pending between the same parties on the same cause of action (Whitney v Whitney, 57 NY2d 731, 454 NYS2d 977 [1982]). Where, as here, a summons is served with notice but without a complaint in a prior action, a defendant's motion to dismiss pursuant to CPLR 3211(a)(4) is properly denied, because where a summons is served with notice but without a complaint, such does not constitute "another action" within the meaning of CPLR 3211[a][4] (John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs., 81 AD2d 633, 438 NYS2d 132 [2d Dept 1981]).

To best serve the interests of judicial economy while still preserving the rights of the parties, the court may sua sponte order consolidation of the actions on a motion pursuant to CPLR 3211(a)(4), even though neither party requests such relief (John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs., supra ). To determine whether or not an action should be dismissed, pursuant to CPLR 3211(a)(4), on the grounds that there is a prior action pending, the Court must look not to when the alleged prior action was filed, nor to when a summons with notice was served in that action, but rather to if and when a complaint was served in the alleged prior action (Wharton v Wharton, 244 AD2d 404, 664 NYS2d 73 [2d Dept 1997]). Here, Koko served its summons and complaint upon Marx in the Suffolk action before Marx served its complaint in the Rensselaer action. Therefore, the Rensselaer action is not a "prior action" for purposes of CPLR 3211(a)(4) dismissal. Accordingly, Marx's motion to dismiss the Rensselaer action is denied.

With regard to proper venue, parties to a contract may freely select a forum which will resolve any disputes over the interpretation or performance of the contract, and it is well settled under New York Law that forum selection clauses are prima facie valid because they provide certainty and predictability in the resolution of disputes (see, Brooke Group Ltd. v JCH Syndicate 488, 87 NY2d 530, 640 NYS2d 479 [1996]; Koko Contracting, Inc. v Continental Environmental Asbestos Removal Corp., 272 AD2d 585, 709 NYS2d 825 [2d Dept 2000]). In order to set aside such a clause, a party must show either that enforcement would be unreasonable and unjust, or that the clause is invalid because of fraud or overreaching, such that a trial in the forum set in the [*4]contract would be so gravely difficult and inconvenient that the challenging party would, for all practical purposes, be deprived of his or her day in court (Horton v Concerns of Police Survivors, Inc., 62 AD3d 836, 878 NYS2d 793 [2d Dept 2009]; Hunt v Landers, 309 AD2d 900, 766 NYS2d 384 [2d Dept 2003]; Premium Risk Group, Inc. v Legion Ins. Co., 294 AD2d 345, 741 NYS2d 563 [2d Dept 2002]; Hirschman v National Textbook Co., 184 AD2d 494, 584 NYS2d 199 [2d Dept 1992]). Absent a showing that it should be set aside, a forum selection clause will control (id).

The motion papers establish that the parties did, indeed, choose Rensselaer County as the forum for resolution of any action or proceeding brought with respect to any matter arising out of the subject contract. Such choice of forum is prima facie valid (see, Brooke Group Ltd. v JCH Syndicate 488, supra ; Koko Contracting, Inc. v Continental Environmental Asbestos Removal Corp., supra ). Inasmuch as there is has been no showing that enforcement of the choice of forum clause would be unreasonable and unjust, or that the clause was the product of fraud or overreaching, Rensselaer County is the proper forum for resolution of these actions (see, Horton v Concerns of Police Survivors, Inc., supra ; Premium Risk Group, Inc. v Legion Ins. Co., supra ; Hirschman v National Textbook Co., supra ). Accordingly, in the interests of judicial economy, the venue of this action is hereby transferred to Rensselaer County and the branch of Koko's motion for an order joining this action with the Rensselaer action is granted (see, John J. Campagna, Jr., Inc. v Dune Alpin Farm Assocs., supra ).

This constitutes the Decision and Order of the Court.

Dated: August 10, 2009

Peter H. Mayer, J.S.C.