Paramount Bldrs. Contr. Corp. v Nationwide Mut. Fire Ins. Co.

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Paramount Bldrs. Contr. Corp. v Nationwide Mut. Fire Ins. Co. 2018 NY Slip Op 30032(U) January 8, 2018 Supreme Court, New York County Docket Number: 652674/2017 Judge: Manuel J. Mendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 01/10/2018 12:12 PM 1] INDEX NO. 652674/2017 NYSCEF DOC. NO. 97 RECEIVED NYSCEF: 01/10/2018 SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. MANUEL J. MENDEZ Justice PART PARAMOUNT BUILDERS CONTRACTING CORP., Plaintiff, NEW YORK COUNTY 13 652674/2017 12/20/2017 002 INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. - against NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, RGB GROUP INC., 132 W26 OWNER LLC, FLATIRON REAL ESTATE ADVISORS, JACK ANCONA and STEVEN ANCONA, Defendants. The following papers, numbered 1 to _9_ were read on this motion to Consolidate : PAPERS NUMBERED Notice of Motion/ Order to Show Cause Answering Affidavits - Affidavits - Exhibits ... Exhibits _ _ _cross motion 1- 3 4 - 6· 7· 8 Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - --=-9_ __ Cross-Motion: Ui z 0 "' w <( (.) w t= 0:: "' (!) :::> z .., - 0 3: I- 0 ...J w ...J c 0:: 0 0:: u.. ww u.. J: w lo:: 0:: >O ...J u.. ...J :::> u.. 1(.) w a. w "' 0:: "' w "' <( (.) z 0 t= 0 :e Yes X No Upon a reading of the foregoing cited papers, it is Ordered that Defendant RGB Group lnc.'s ("RGB") motion to consolidate four (4) separate actions pursuant to CPLR §602, is granted. Defendant RGB's motion seeks to consolidate four (4) separate actions derived from the same occurrence. The actions involve common questions of law and fact arising from alleged negligent construction and/or excavation work performed at or near 132 West 26th Street, New York, NY (the "Construction Project"). The Construction Project caused damages to the surrounding properties. The First Action titled Privilege Underwriters Reciprocal Exchange a/s/o Gabriella Santorelli and Gabriella Santorelli, individually v Paramount Builders Contracting Corporation, et. al., Index No.: 55044/2016 was commenced in Westchester County on April 18, 2016 for damages to the building Plaintiffs resided in as a result of the Construction Project. The Second Action titled 132 W26 Owner, LLC v Paramount Builders Contracting Corp., et. al., Index No.: 152814/2017 was commenced in New York County on March 7, 2017 for damages due to negligence and breach of contract as a result of the Construction Project. The Third Action titled Pacific Indemnity Insurance Company a/s/o Tina D. Difeliciantonio and Jane Wagner v Paramount Builders Contracting Corp., et. al., Index No.: 153848/2017 was commenced on April 26, 2017 for damages to the apartment the subrogors resided in as a result of the Construction Project. This action titled Paramount Builders Contracting Corp. v Nationwide Mutual Fire Insurance Company, et. al., Index No.: 652674/2017, was commenced in New York County on May 16, 2017 ("Fourth Action"). The Fourth Action seeks a declaratory judgment that Defendant Nationwide, under its policy of insurance issued to Defendant RGB, is obligated to defend and indemnify the Plaintiff for all claims arising from the Construction Project. 1 of 4 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 12:12 PM 2] NYSCEF DOC. NO. 97 INDEX NO. 652674/2017 RECEIVED NYSCEF: 01/10/2018 Action 4 Defendant RGB now moves to consolidate four (4) separate actions pursuant to CPLR §602. Action 2 Plaintiff 132 W26 Owner LLC and Action 1 Plaintiffs Privileged Underwriters Reciprocal Exchange a/s/o Gabriella Santorelli and Gabriella Santorelli, individually, have opposed the motion. Pursuant to CPLR §602, consolidation lies within the discretion of the court and is generally favored where there are common questions of law or fact, unless the party opposing the motion demonstrates prejudice of a substantial right. The burden is on the opposing party to demonstrate prejudice (Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 821 NYS2d 162 [1st Dept. 2006]). "Special circumstances" may warrant the court, in its discretion, to place the venue elsewhere from the County the action was commenced in (Brown v COPD Best Way Express, Inc., 99 AD3d 746, 952 NYS2d 220 [2"d Dept. 2012]). A review of the record indicates that judicial economy would be served by consolidating the actions in Westchester County since the First Action was commenced in Westchester County and discovery has already been ongoing in the First Action. Three of the four actions are currently venued in New York County. W26 Owner and Privileged Underwriters have both failed to demonstrate how consolidation of these actions would prejudice them in any way. Consolidation is favored by the courts in serving the interests of justice and judicial economy (Flaherty v RCP Assocs., 208 AD2d 496, 616 NYS2d 801 [2"d Dept. 1994]). Accordingly, it is ORDERED, that Defendant RGB Group lnc.'s motion to consolidate four (4) actions pursuant to CPLR §602 is granted, and it is further, ORDERED, that the actions titled Privilege Underwriters Reciprocal Exchange a/s/o Gabriella Santorelli and Gabriella Santorelli, individually v Paramount Builders Contracting Corporation, et. al., Index No.: 55044/2016, 132 W26 Owner, LLC v Paramount Builders Contracting Corp., et. al., Index No.: 152814/2017, Pacific Indemnity Insurance Company a/s/o Tina D. Difeliciantonio and Jane Wagner v Paramount Builders Contracting Corp., et. al., Index No.: 153848/2017, and the action titled Paramount Builders Contracting Corp. v Nationwide Mutual Fire Insurance Company, et. al., Index No.: 652674/2017, is consolidated in the Supreme Court, Westchester County under lnd1ex Number 55044/2016, and it is further, ORDERED, that the venue for the three New York County actions is changed from the Supreme Court, New York County to the Supreme Court, County of Westchester, and it is further, ORDERED, that the caption is amended to reflect the consolidation, and it is further, ORDERED, that the consolidated action shall bear the following caption: PRIVILEGE UNDERWRITERS RECIPROCAL EXCHANGE, a/s/o Gabriella Santorelli and GABRIELLA SANTORELLI, individually, Plaintiffs, Index: 55044/2016 -AgainstPARAMOUNT BUILDERS CONTRACTING CORPORATION and 132 W26 OWNER LLC, Defendants. 2 of 4 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 12:12 PM 3] NYSCEF DOC. NO. 97 INDEX NO. 652674/2017 RECEIVED NYSCEF: 01/10/2018 PARAMOUNT BUILDERS CONTRACTING CORPORATION and 132 W26 OWNER LLC, Third-Plaintiffs, -AgainstSKYLINE ENGINEERING, LLC, RGB GROUP INC., AVISHAY I. MAZOR, PE, EUROCRAFT CONTRACTING LLC, BECKER ENGINEERING, PC, DUBINSKY CONSUL TING ENGINEERING, PC and AGL INDUSTRIES INC., Third-Party Defendants. 132 W26 OWNER LLC, Plaintiff, -AgainstPARAMOUNT BUILDERS CONTRACTING CORP, RGB GROUP, INC., AVISHAY I. MAZOR, P.E. and BECKER ENGINEERING, P.C., Defendants. PACIFIC INDEMNITY INSURANCE COMPANY, a/s/o TINA D. DIFELICIANTONION and JANE WAGNER, Plaintiffs, -AgainstPARAMOUNT BUILDERS CONTRACTING CORP. and 132 W26 OWNER LLC, Defendants. PARAMOUNT BUILDERS CONTRACTING CORP., Third-Party Plaintiff, -Against- SKYLINE ENGINEERING, LLC, RGB GROUP INC., AVISHAY I. MAZOR, PE, EUROCRAFT CONTRACTING LLC, BECKER ENGINEERING, PC, DUBINSKY CONSULTING ENGINEERING, PC and AGI INDIJSIRIES INC, Third-Party Defendants, PARAMOUNT BUILDERS CONTRACTING CORP., Plaintiff, -AgainstNATIONWIDE MUTUAL FIRE INSURANCE COMPANY, RGB GROUP INC., 132 W26 OWNER LLC, FLATIRON REAL ESTATE ADVISORS, JACK ANCONA, and STEVEN ANCONA, Defendants. 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, 3 of 4 [*FILED: NEW YORK COUNTY CLERK 01/10/2018 12:12 PM 4] INDEX NO. 652674/2017 NYSCEF DOC. NO. 97 1 RECEIVED NYSCEF: 01/10/2018 ORDERED, that within thirty (30) days from the date of entry of this Order • D~fendant RGB Group Inc. is directed to serve a copy of this order with Notice of Entry o~:a11 parties, and on the New York County Clerk's Office pursuant toe-filing protocol, and a separate copy of this Order with Notice of Entry shall be served p~rsuant to e-filing protocol on the Trial Support Clerk located in the General C'erk's Office at genclerk-ords-non-mot@nycourts.gov who are hereby direct~d to ma:rk the Court's records to reflect the consolidation and amendment to the caption and to: transfer the papers on file in· this action to the Clerk of the Supreme Court, County of W~stchester upon service of a copy of this order with notice of entry and payment of the I . aP,propriate fees. ENTER: MANUEL J. McNDE~ J.S.C. Dated: January 8, 2018 MANUELJ.MENDEZ J.S.C. 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