Fennell v Vesta Contr. Group, Corp.

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Fennell v Vesta Contr. Group, Corp. 2017 NY Slip Op 31508(U) July 14, 2017 Supreme Court, New York County Docket Number: 156215/16 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 1] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2 ----------------------------------------x JENNIFER FENNELL, DECISION AND ORDER Plaintiff, Index No. 156215/16 -againstMot. Seq. 001 VESTA CONTRACTING GROUP, CORP., Defendant. --------~-------------------------------x Kathryn Freed, J.: RECITATION, AS REQUIRED BY CPLR 2219(a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION: PAPERS NUMBERED SUMMONS AND COMPLAINT 1 NOTICE OF MOTION AND AFFIDAVIT ANNEXED 2-3 (Exs. A-D) CROSS MOTION AND AFF. IN OPP. 12 (Exs. A-E) PLAINTIFF'S REPLY/OPPOSITION AFFIRMATION 18 (Exs. E-H) UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDER ON THE MOTION IS AS FOLLOWS: This is a personal injury action by plaintiff Jennifer Fennell against defendant Vesta Contracting Group, Corp. ("Vesta"), arising from a trip and fall on August 21, 2013, on the sidewalk adjacent to the premises located at 160 East ggch Street in Manhattan ("the premises"). Plaintiff moves, pursuant to CPLR 3215, for an order 1 1 of 11 [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 2] NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2017 of default against Vesta due to its failure action, and for an inquest on damages. to CPLR 602 (a), ("Fennell styled INDEX NO. 156215/2016 2") an with a Fennell ("Fennell for v l"). order to appear of New consolidating York, this Vesta cross-moves, pursuant the previously commenced action City in et al, instant action in this Index No. court 153196/14 The motion and cross motion are granted to the extent set forth below. Background Plaintiff was allegedly injured on August 21, 2013 when she tripped and fell on the sidewalk adjacent to the premises while construction and renovation work was being performed there. In March, 2014, Fennell commenced the Fennell 1 action under New York County Index Lexington Number Towers 153196/14 Company, against The of New Towers L. P. '· Lexington City GP Co. , York, LLC, Schneider & Schneider, Inc., Schneider & Schneider Management, LLC, Helmsley-Spear Inc., OF Restoration, Inc. ("DFRv), OF Restoration of NY, Inc., Skyline Scaffolding Group and Total Safety Consulting seeking damages for her injuries. Ind. No. 153196/14 NYSCEF Doc. 1. In project, August of commenced indemnification 2014, a DFR, a contractor third-party against Vesta as action its 2 2 of 11 on for the construction contribution subcontractor. Ind. and No. [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 3] INDEX NO. 156215/2016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2017 153196/14 NYSCEF complaint in Doc. Fennell Vesta 129. 1 on or about answered August the 18, third-party 2014. Ind. No. 153196/14 NYSCEF Doc. 75. Fennell commenced the instant Fennell 2 action against Vesta on July 26, 2016. NYSCEF Doc. In Fennell 2, 1. plaintiff also sought damages for the injuries she allegedly sustained on August 21, 2013. Id. On August 2, 2016, plaintiff served process on Vesta pursuant to Business Corporation Law (BCL) 306 by serving the § Secretary bf State of.the State of New York. August 9, attorneys action. 2016, Fennell' s notifying attorneys them of the sent NYSCEF Doc. a letter commencement The letter specifically set forth of to the 5. On Vesta's Fennell 2 the names and index numbers of both the Fennell 1 and Fennell 2 actions. The letter stated: Your off ice represents third-party defendant Vesta Contracting Group in the action Fennell v. The City of New York et. al. Enclosed herewith please find a copy of a Summons and Complaint for the companion action, Fennell v. Vesta Contracting Group, which has been served on your client through the Secretary of State. I am also providing a copy of the Affidavit of Service. Upon receipt, please take the necessary steps to have an answer interposed in behalf .of your client. Thereafter, on September 16, 2016, 3 3 of 11 Fennell sent a letter to [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 4] INDEX NO. 156215/2016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2017 Vesta, its attorneys, letter noted expired. that . However, September 16, its insurance broker and its insurer. Vesta's time to appear the letter stated that, 2016, in this The action had if Vesta appeared by plaintiff would not seek a default judgment against it. Vesta did not appear in this action and, on September 27, 2016, Fennell brought, the instant motion for a default judgment and for an inquest on damages. Vesta opposes the motion and cross- moves to consolidate the Fennell 1 and Fennell 2 actions. consolidation, Vesta requests that the Fennell 2 Upon action be dismissed. By order dated November 17, 2016, this Court (Kotler, J.) granted a conditional order of preclusion against Vesta due to its failure to provide discovery NYSCEF Doc. 141. in Fennell 1. Ind. 2017, Vesta's failure 153196/14 The order provided Vesta with a final opportunity to provide discovery before it was precluded. Id. January 26, No. this Court (Kotler, J.) By order dated held that, in light of to comply with the order of November 17, 2016, "Vesta is hereby precluded from introducing any evidence on the issue of liability at a trial of this matter." Ind. No. 153196/14 NYSCEF Doc. 175. A note of issue was filed in Fennell 1 on February 22, 2017. 4 4 of 11 [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 5] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 Ind. No. 153196/14 NYSCEF Doc. 200. Discussion Plaintiff's Motion For Default Against Vesta CPLR 3215 (a) provides that, when a defendant has failed to appear in an action, the plaintiff may seek a default judgment against it. CPLR 3215 (a) . provides, in pertinent part, that "[w] hen a defendant has failed to appear, plead or proceed to trial ... , the plaintiff may seek a default judgment against [it]." "On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting Atlantic Cas. party's Ins. Co. v default in RJNJ Servs. answering Inc., or appearing." 89 AD3d 649, 651 (2d Dept 2011). Here, plaintiff',s service of process. counsel has undisputed Further, proof of proper It is undisputed that Vesta was served via the Secretary of State pursuant to BCL also submitted that Vesta § failed 306 on August 2, 2016. to serve a timely It is answer. plaintiff has set forth proof of the facts constituting the claim in the form of a complaint verified by plaintiff. 5 5 of 11 Thus, [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 6] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 plaintiff has established each of the elements needed to establish her entitlement to Cas. Co. v RJNJ Servs. Ins. BCL a default judgment against § Inc., See Atlantic Vesta~ 89 AD3d 649 at 651. 306 (a) provides for service of process on a registered agent "as if the registered agent was a defendant." BCL § 306 (b) (1) provides a mechanism for service of process on the Secretary of / State as agent of a domestic corporation, and it further provides that service of pr~cess on a corporation shall be complete when the Secretary of State is properly served. Plaintiff's proof of service on Vesta via the Secretary of State has not been refuted. Therefore, this Court finds that plaintiff has demonstrated that she is entitled· to a default judgment against Vesta for failure to appear in this action. Vesta argues several reasons. notice of default. that plaintiff's motion· should be denied for First, it contends that it never received actual Fennell 2 until service 9f the instant motion for a It contends that plaintiff served the Secretary of State without also serving Vesta. It also contends that its address is no longer the one listed on the summons. Defendant's arguments are unpersuasive. As set forth above, service on Vesta was complete when plaintiff completed service on the Secretary of State pursuant to BCL 6 6 of 11 § 306. To the extent that [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 7] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 Vesta claims that it changed its address, such a change is not an excuse for its default. It is undisputed that the address on the summons is the same as the one on file with the Secretary of State. If Vesta changed its address, it was responsible for notifying the Secretary of State of such change, and its failure to do so does State Farm Mut. not relieve it of its default. Dr. Auto. Ibrahim Fatiha Chiropractic, P.C., 147 AD3d 696, Ins. 697 Co. v (l 5 L Dept 2017) . 1 Further, Vesta does not dispute that it received the two letters from plaintiff's attorneys notifying it of the Fennell 2 action. Vesta claims that such letters did not clearly inform it of the commencement of the Fennell 2 action. However, the letters clearly state that a new action, was being commenced directly against Vesta. Fennell 2, Nothing in the letters was unclear or would serve to confuse or mislead Vesta about the commencement of the Fennell 2 action. Thus, this Court finds that plaintiff has demonstrated that it is entitled to a default judgment against Vesta and that Vesta has failed to set forth a reasonable excuse for its failure to appear 1 Although this Court notes that Vesta attempted to serve an untimely answer by mailing it to plaintiff's counsel on October 11, 2016, plaintiff's counsel rejected the purported answer by correspondence dated October 14, 2016. NYSCEF Docs. 10 and 11. Vesta did not move for an extension of time to answer. 7 7 of 11 [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 8] NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2017 in this action. See State Farm 147 AD3d at 697; Carmody v 208-210 E. 31st Realty, LLC, 135 AD3d 491 While damages, INDEX NO. 156215/2016 a default would this Court does not (l"t Dept 2016). ordinarily order that lead an to an inquest inquest be on held in Fennell 2 since, as noted below, this matter is to be consolidated with Fennell 1 and the damages to be assessed against Vesta will be determined in the action consolidated under Fennell l's 2014 Index Number. As noted above, in Fennell 1, Vesta was precluded by Justice Kotler from introducing evidence regarding its liability. Vesta's Cross Motion for Consolidation Vesta's cross motion for consolidation is granted. CPLR 602 (a) gives .the trial court discretion to consolidate actions involving common questions of law or fact. Al though great deference is to be accorded to the motion court's discretion (see Matter of Hill v Smalls, 49 AD2d 724 (1975), appeal dismissed 38 NY2d 893 (1976]), there is a preference for consolidation in the interest of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right (Raboy v McCrory Corp., 210 AD2d 145, 147 [1994]; Firequench, Inc. v Kaplan, 256 AD2d 213 [1998]). Progressive Ins. Co. v Countrywide Ins. Co., 10 AD3d 518, 519 (1st Dept 2004). Here, there is no question that Fennell 1 and Fennell 2 arise 8 8 of 11 [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 9] INDEX NO. 156215/2016 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 07/17/2017 from the same incident and thus involve common questions of law and fact. Plaintiff, "as the party opposing consolidation, has not demonstrated prejudice to a substantial right." Progressive Ins. Co. v Countrywide Ins. Co., 10 AD3d at 519. In opposition to the cross motion, plaintiff, 82 years of age, contends, caused by inter al ia, a·conso~idation. pars. 33-36. she wi 11 be prejudiced by the delay Pltf.'s Aff. In Opp. ~To Cross Mot., at On the contrary, however, since the note of issue has already been filed plaintiff, that who is in over Fennell 1, the age that of i:::ase 70, is is trial entitled ready and to a trial preference. See CPLR 3403 (a) (4). Therefore, in light of the foregoing, it is hereby: ORDERED that. the motion by plaintiff Jennifer Fennell for a default judgment against defendant Vesta Contracting Group, Corp. is granted; and it is further ORDERED that the cross motion by defendant Vesta Contracting Group, Corp. for consolidation is granted and Fennel 1 ahd Fennel 2 are to be ·consolidated under New 153196/14; and it is further 9 9 of 11 York County Index Number [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 10] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 ORDERED that the damages, if any, to be awarded against Vesta Contracting Group, Corp. shall be determined at the time of the trial of the consolidated action; and it is further ORDERED that the caption of the consolidated action shall read as follows: ----------------------------------------x Jennifer Fennell, Plaintiff, Index No. 153196/14 -againstThe City of New York, Lexington Towers Company, L.P., Lexington Towers GP Co., LLC, Schneider & Schneider, Inc., Schneider & Schneider Management, LLC, Helmsley-Spear Inc., OF Restoration, Inc., DF Restoration of NY, Inc~, Skyline Scaffolding Group, Total Safety Consulting, and Vesta Contracting Group, Corp., Defendants. ----------------------------------------x 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 10 10 of 11 [*FILED: NEW YORK COUNTY CLERK 07/17/2017 12:07 PM 11] NYSCEF DOC. NO. 26 INDEX NO. 156215/2016 RECEIVED NYSCEF: 07/17/2017 further ORDERED that the third-party claim by OF Restoration, against Vesta Contracting Group, Corp. in Fennell 1 is Inc. hereby converted into a crossclaim; ORDERED that plaintiff Jennifer Fennell is directed to serve a copy of this order, with notice of entry, upon the County Clerk (Room 1418), and on the General Clerk's Office (Room 119), who shall consolidate the papers in the actions hereby consolidated and shall mark their records to reflect the consolidation; and it is further ORDERED that this constitutes the decision and order of the Court. ENTER: Dated: July 14, 2017 11 11 of 11

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