C. Cabrera Constr., LLC v BCRE/15 Union Sq. W. LLC

C. Cabrera Constr., LLC v BCRE/15 Union Sq. W. LLC 2010 NY Slip Op 07992 [78 AD3d 440] November 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

C. Cabrera Construction, LLC, Respondent,
v
BCRE/15 Union Square West LLC, Appellant.

—[*1] Tarter Krinsky & Drogin, LLP, New York (Michael R. Wood of counsel), for appellant.

Law Offices of Edward Weissman, New York (Jan Marcantonio of counsel), for respondent.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered June 16, 2009, which, insofar as appealed from, denied as premature defendant's motion to consolidate this action alleging breach of contract with a lien foreclosure action pending in Supreme Court, New York County, unanimously affirmed, with costs.

Defendant failed to attach a copy of the complaint or any other pleading in the lien foreclosure action to support its contention that that action and this one involve the same questions of law and fact (see CPLR 602 [a]). To the extent any such pleadings exist, the motion court was not required to take judicial notice of their existence or their contents (see CPLR 4511 [b]). Nor is it apparent from the record that defendant served copies of the motion papers on all the parties that would be affected. Indeed, the record shows that the only party on which defendant served a copy of the papers is the plaintiff in this case. Concur—Gonzalez, P.J., Saxe, Nardelli, Richter and RomÁn, JJ.