American Sec. Ins. Co. v Church of God of St. Albans

[*1] American Sec. Ins. Co. v Church of God of St. Albans 2014 NY Slip Op 50078(U) Decided on January 24, 2014 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2014
Supreme Court, Queens County

American Security Insurance Company, as Subrogee of MICHAEL R. TOPPIN and TOPPIN & TOPPIN, Attorneys at Law, and MICHAEL R. TOPPIN and TOPPIN & TOPPIN, Attorneys at Law, Plaintiffs,

against

Church of God of St. Albans, MIKE'S CONTRACTING BUILDING AND DEVELOPMENT, CORP., EURO DECO MANAGEMENT CORP., FIRST NEW YORK CONSTRUCTION, MILTIADIS LEPTOURGOS, P.E., HAROLD E. GEBHARD A.I.A. and VERSATILE ENGINEERING, P.C., Defendants.



10101/2012

Robert J. McDonald, J.

The following papers numbered 1 to 21 were read on this motion by defendant, CHURCH OF GOD OF ST. ALBANS, for an order, pursuant to CPLR 602 consolidating the above-captioned Action No. 1 with Action 2 filed under Index No. 5592/12 and Action No. 3 filed under Index No. 702503/12:

Papers

Numbered

Church of God's Notice of Motion-Affidavits-Exhibits..1 - 6

Toppin's Affirmation in Opposition....................7 - 9

Leptourgos P.E.'s Affirmation in Opposition..........10 - 13

Brusca'a Affirmation in Opposition...................14 - 16

Gebhard's Affirmation in Opposition..................17 - 19

Church of God's Reply Affirmation....................20 - 21

_________________________________________________________________ [*2]

In the above-captioned Action No. 1, plaintiff commenced an action by filing a summons and complaint on March 25, 2011 to recover for damages to the property owned by Michael R. Toppin located at 223-05 Hempstead Avenue, Queens Village, New York. The building was damaged in September 2009 allegedly as the result improper and deficient sheeting, shoring and underpinning during the excavation phase of construction of the Church of God located on an adjacent property. The specific facts of this matter are set forth in this Court's decision and order dated October 25, 2012 which granted the plaintiff's motion for partial summary judgment on the issue of liability against defendants Church of God, the owner of the adjacent property, Mike's Contracting, the excavator and Harold Gebhard, the architect on the project (see American Sec. Ins. Co. v Church of God of St. Albans, 2012 NY Slip Op 22308 [Sup. Ct. Queens Cty, 2012]). This Court found that as the plaintiff's property was damaged during the excavation of an adjacent property that said defendants were strictly liable for violating New York City Building Code § 3309.4 based upon the recent Court of Appeals decision in Yenem Corp. V 281 Broadway Holdings, 18 NY3d 481 {2012]).

Action No. 2, filed under Index No. 5592/12, entitled SAL BRUSCA, INC. a/k/a/SAL BRUSCA CONTRACTING CO., Plaintiff, against EURO DECO MANAGEMENT and CHURCH OF GOD OF ST. ALBANS, Defendants, was commenced one year after Action No. 1 by the filing of a summons and complaint on March 15, 2012. Said action commenced by a subcontractor of Euro Deco seeks to recover compensation in the amount of $96,150.00 from Euro Deco and from Church of God for work performed on Church of God's premises.

Action No. 3, filed under Index No. 702503/12, entitled APPOLO TECH CORP., Plaintiff, against CHURCH OF GOD OF ST. ALBANS INC.,and EURO DECO MANAGEMENT was commenced by filing a summons and complaint on October 16, 2012. Action No.3 was instituted by a seccond subcontractor of Euro Deco to recover compensation of $66,351 from Euro Deco and Church of God for worked allegedly performed and not paid for.

Pursuant to the prior motion of Church of God, an order granting a joint trial of Action No. 2 with Action No. 3, was granted by Justice Butler by decision and order dated September 19, 2013.

Defendant in Action Nos. 1, 2 and 3, Church of God of St. Albans Inc., now moves for an order consolidating all three actions for joint trial. Counsel states that at Toppin's deposition taken on November 14, 2013, Toppin testified that his claims against Euro Deco also implicate Brusca and Appolo, the [*3]subcontractors of Euro Deco on the project.

Counsel for Toppin, Vincent T. Pallaci, Esq. opposes the motion on the ground that the three actions the defendant Church of God seeks to consolidate do not involve common questions of law or fact. Counsel argues that to consolidate the two later filed actions, No. 2 and No.3 with Action No. 1 would substantially prejudice the Toppin plaintiffs who have already obtained summary judgment on the issue of liability against Church of God, Mike's Contracting and Harold Gebhard. Toppin contends that Action No. 1 involves damages to the plaintiff's property due to construction being performed at an adjacent property owned by Church of God, whereas Action Nos. 2 and 3 involve an action for breach of contract and the filing and foreclosing of mechanic's liens against the Church of God's property for non-payment of work performed by the sub-contractors of Euro Deco Management Corp. Counsel also argues that discovery has commenced in Action No. 1 and for Mr. Toppin to have to appear for and attend duplicative depositions would be substantially burdensome and would delay the resolution of Action No. 1.

James M Murphy, Esq., counsel for architect, Harold E. Gebhard, also opposes the motion for consolidation, stating that whereas the complaint in Action No. 1 sounds in negligence, intentional tort and nuisance, and arises from damage to construction, Action Nos. 2 and 3 are both actions for money damages wherein the plaintiffs seek to recoup compensation for work performed at the property owned by Church of God. Therefore, counsel argues that there is no justification for joining Action 1 with Actions 2 and 3, as Actions 2 and 3 do not involve common questions of law and fact and are not claims related to plaintiff's action for damages in Action No. 1. Counsel also argues that as discovery is proceeding in Action No. 1, consolidation of the three actions would delay and duplicate discovery and cause unnecessary expense for Mr. Gebhard who has no interest at all in Actions 2 and 3. Counsel states that the actions are at markedly different procedural stages and moreover, the actions should remain separate so as to avoid confusion and prejudice.

George Marco, Esq., counsel for Appolo Tech Corp. also opposes the motion to consolidate. Counsel agrees that Actions 2 and 3 do not involve common questions of law and fact with Action No. 1 and would unduly prejudice the rights of Appolo if the matters were consolidated for joint trial and discovery. Counsel states that Actions 2 and 3 sound in breach of contract and foreclosure of a mechanic's lien and seek to recover damages for [*4]work performed at the Church of God premises. Further, counsel asserts that a lien foreclosure action is one grounded in equity and as an equitable action it is to be tried without a jury under Lien Law § 45. Counsel claims that if his client, Mr. Gebhard were to become embroiled in the tort action based upon property damage, before a jury, there would be undue prejudice and confusion of both factual and legal issues. Counsel also opposes the motion on the ground that it is not supported by an affidavit of fact. Further, counsel states that it is not clear that the three actions arise out of the same transaction as Toppin testified at his deposition that there were two separate and distinct projects taking place at the premises of Church of God with demolition and excavation work being performed by Mike's Contracting and First New York in 2008 and 2009, and a second project involving Euro Deco taking place between 2010 and 2012. Counsel also asserts that Appolo was not even on site when the damage to Toppin's property, which is the subject of Action No. 1, took place in June 2009. Counsel asserts that Apollo did not even enter into a contract with Euro Deco until January 2010 and therefore his client wold be prejudiced by a consolidation (Citing Sokolow v Lacher, 299 AD2d 64 [1st Dept. 2002]).

Similarly, counsel for Sal Brusca, Inc., a subcontractor of Euro Deco and the plaintiff in Action No. 2, opposes consolidation contending that the mere fact that Brusca was a subcontractor at the Church of God property at some time during the entirety of the project is insufficient justification for consolidating the Toppin Action No. 1 with the already consolidated Brusca and Appolo actions. Further, counsel asserts that there is no need for the parties in the Toppin action to be concerned with discovery regarding payment issues between Euro and its two subcontractors, as those payment issues have no bearing on or relevance to the allegations or defenses raised by the parties in the Toppin property damage, intentional tort and negligence action. Consolidation it is claimed would unnecessarily increase the expense to the plaintiffs in the Brusca and Appolo matters. Further, counsel asserts that there is no risk of inconsistent verdicts as the actions seek damages based upon different theories or recovery and involve different parties.

Counsel for defendant Miltiadis Leptourgos, P.E. has also opposed the motion to consolidate on the ground that Action No. 1 and Actions 2 and 3 are at markedly different procedural stages and fail to share any common issues of law and fact. Counsel asserts that Action No. 1 which asserts causes of action for negligence, intentional tort and nuisance, arose out of damages allegedly sustained to Toppin's property between July and [*5]September of 2009. Depositions of all parties in Action No. 1 have been completed or scheduled for the near future. In contrast Action No. 2, which seeks damages for breach of contract and uncompensated construction services was commenced by Brusca in March 2012 and the action by Apollo in Action No. 3 was commenced in October 2012. Counsel asserts that his client, Mr. Leptourgos is not a party to Actions 2 and 3 and should not be forced to partake in discovery that is necessary in those actions as plaintiffs in Action Nos. 2 and 3 have no claims against Leptourgos.

In reply, counsel for Church of God asserts that the three actions should be consolidated as all three actions arise from the same construction project and Action No. 1 is only in the early stages of discovery. Further, counsel claims that the plaintiffs in Actions 2 and 3 are subcontractors who performed part of Euro Deco's work.

Upon review and consideration of the motion by defendant in Action Nos 1, 2, and 3, Church of God, the affirmations in opposition and the defendant's reply thereto, this court finds that the motion by The Church of God to consolidate Actions 1, 2 and 3 is denied. Where common questions of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" (Perini Corp. v WDF, Inc., 33 AD3d 605[2d Dept. 2006]).

However, as set forth quite clearly in the several affirmations in opposition, despite the fact that Action Nos 1, 2, and 3 are all derived from the same construction project, there are no common questions of law or fact shared between the actions. The instant action for real property damage due to deficient construction services, nuisance, negligence and intentional tort is not related to the breach of contract, unpaid monies and mechanics liens in Actions No. 2 and 3. There is also a question of whether the subcontractors were even involved on the project at the time the damage occurred. Thus, the issues involved in the two matters arise out of different transactions and different claims by the respective plaintiffs and require dissimilar proofs. Therefore, this court finds that consolidation is inappropriate and would not be in the interests of judicial economy (see County of Westchester v. White Plains Ave., LLC, 105 AD3d 690 [2d Dept. 2013]; Target Graphics Inc. v Deutsch, 282 AD2d 601 [2d Dept. 2001]; D'Abreau v. American Bankers Ins. Co., 261 AD2d 501[2d Dept. 1999]). Separate trials will enable the jury or trier of fact to focus on the factual issues presented as to each case (see Brown v Brooklyn Union Gas Co., 137 AD2d 479 [*6][2d Dept. 1988]).

In addition, it appears that there is a disparity between the stages of litigation to which each case has progressed and that the parties in Action Nos. 2 and 3 would be substantially prejudiced in having to participate in discovery for claims in which they are not involved.

Accordingly for the above-stated reasons and as consolidation herein would not further the stated goal of CPLR 602(a) of "avoiding unnecessary costs or delay" and it is hereby

ORDERED, that he motion by Church of God for consolidation is denied.

Dated: January 24, 2014

Long Island City, NY ______________________________

ROBERT J. MCDONALD

J.S.C.