Rick's Constr. & Ironworks, Inc. v Biltwel Gen. Contr. Corp.

[*1] Rick's Constr. & Ironworks, Inc. v Biltwel Gen. Contr. Corp. 2018 NY Slip Op 50585(U) Decided on April 18, 2018 Supreme Court, New York County Reed, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 18, 2018
Supreme Court, New York County

Rick's Construction & Ironworks, Inc., Plaintiff,

against

Biltwel General Contractor Corp., The New York City Department of Environmental Protection, and Seneca Insurance Company, Inc., Defendants.



655346/2017



For Plaintiff:

Gold Law P.C.

200 Mamaroneck Ave., Suite 500

White Plains, NY 10601

By: Elie Gold, Esq.

For Defendant: Biltwel General Contractor Corp.:

Kushnick Pallaci PLLC

630 Johnson Ave., Suite 201

Bohemia, NY 11716

By: Jeffrey A. Lhuillier, Esq.
Robert R. Reed, J.

Plaintiff's motion to consolidate a Suffolk County action into this court is DENIED.

In April 2016, defendant Biltwel General Contractor Corp. ("Biltwel") filed a defective materials action in Suffolk County. Deposition testimony indicated that plaintiff Rick's Construction & Ironworks, Inc. ("Rick's") was a necessary party to that action. In June 2017, the Supreme Court of Suffolk County granted Biltwel's motion to amend its complaint and add Rick's as a defendant to that case. In August 2017, Rick's filed this unpaid wage action against Biltwel in New York County.

Rick's now moves, pursuant to CPLR 602, to consolidate the Suffolk County action with this New York action. Rick's argues that consolidation in New York should be granted because [*2](1) both cases arise from the same construction project in Queens, New York, (2) party and non-party witnesses are located in New York County and (3) its "substantial right to participate in discovery would be prejudiced by consolidating in Suffolk County because depositions and all other non-expert discovery has concluded in the Suffolk Action" (see Plaintiff's Memorandum of Law in Support of Motion to Consolidate). Biltwel opposes consolidation, arguing that, while both cases arise from the same construction project in Queens County, there are no common questions in law or fact between the cases — as the Suffolk County action alleges defective materials while this New York County action alleges uncompensated labor. Additionally, Biltwel argues that the actions are in different procedural postures and consolidation will unnecessarily delay the Suffolk County action, where only one party, Rick's, remains to be deposed.

"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (see CPLR 602(a)). "Consolidation is generally favored by the courts 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" (see Amtorg Trading Corp. v. Broadway & 56th St. Assoc., 191 AD2d 212, 213). The burden of demonstrating prejudice to a substantial right is on the party opposing consolidation (see Sokolow, Dunaud, Mercadier & Carreras v. Lacher, 299 AD2d 64, 74).

Here, while both actions stem from the same construction project and have parties in common, there are no common questions in fact or law. Plaintiff's argument that its substantial right to discovery is prejudiced if the actions are consolidated in Suffolk County is unavailing. No note of issue has been filed in that case and discovery is still ongoing. While Rick's was impleaded into the Suffolk County action more than one year after its initial filing, the record does not indicate purposeful exclusion. Rick's has an opportunity to engage in meaningful discovery in the Suffolk County action.

With regard to plaintiff's contention that Biltwel added Rick's to the Suffolk County action in bad faith, the record before the court indicates that less than 90 days after being impleaded into a Suffolk County action, Rick's filed an entirely new complaint against that same party, alleging claims related to that same construction project and, on the same day, moved to consolidate that existing Suffolk County action in this court. Any request by Rick's for relief based on a claim of prejudice is more appropriately brought before the jurist presiding over the Suffolk County action.

Accordingly, it is hereby

ORDERED that plaintiff's motion to consolidate is DENIED.

Dated: April 18, 2018

HON. ROBERT R. REED

J.S.C.