Diamond v TF Cornerstone Inc.

[*1] Diamond v TF Cornerstone Inc. 2018 NY Slip Op 51484(U) Decided on October 24, 2018 Supreme Court, New York County St. George, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 24, 2018
Supreme Court, New York County

Sean Diamond, Plaintiff,

against

TF Cornerstone Inc., Defendant.



152626/2016



FOR PLAINTIFF:

Sean W. Schaefer

PEKNIC, PEKNIC & SCHAEFER, LLC

1005 West Beech Street, Long Beach, NY 11561

FOR DEFENDANT:

Peter R Bain

MARGARET G. KLEIN & ASSOCIATES

200 Madison, New York, NY 10016
Carmen Victoria St. George, J.

This case arises out of a trip and fall in the stairwell of defendant TF Cornerstone Inc.'s (TF) property, Carnegie Hall Tower II (Carnegie Tower), on November 15, 2015. Plaintiff filed the summons and complaint around March 28, 2016, and the request for judicial intervention (RJI) was filed on June 15, 2016. The parties have engaged in substantial discovery, including numerous discovery conferences and two discovery motions. At the most recent conference, on September 13, 2018, the parties represented that further medical examinations were required, and that all other discovery is complete. The note of issue deadline was set for December 6, 2018 — well beyond this Court's standards and goals, but consistent with the deadline set forth in e-courts.

Around July 27, 2018, plaintiff commenced a new action, Sean Diamond v Carnegie Hall Tower II, LLC, ABM Industries, Inc. d/b/a ABM Janitorial Services Northeast, Inc., Unity Building Services, Inc. and Klear Electrical Corp., Index No. 157011/2018. This complaint alleges that on November 15, 2015, Carnegie Tower owned, controlled, and was responsible for the building in question, and that ABM Industries, Unity Building Services, and Klear Electrical [*2]all performed services at the building and were responsible for maintaining the stairwells. Subsequently, plaintiff discontinued as against Unity Building Services only. The new case seeks to recover damages for the same trip and fall at issue in the action before this Court. Carnegie Tower is the only party which has filed an answer in the new action. It is represented by Margaret G. Klein & Associates, which also represents TF in this lawsuit.

Currently, TF moves for an order consolidating this action with the new action. Under CPLR § 602 (a), it points out, consolidation is proper where, as here, the two cases arise out of the same set of facts and involve the same legal issues. It also cites Geneva Temps, Inc. v New World Communities, Inc., 24 AD3d 332, 334 [1st Dept 2005]), which states that "there is a preference for consolidation in the interest of judicial economy where there are common questions of law and fact" absent a showing of prejudice by an opposing party (see also DeSilva v Plot Realty, LLC, 85 AD3d 422, 423 [1st Dept 2011] [citing Geneva]).

Plaintiff does not oppose consolidation and, in fact, agrees that in this situation there is a preference for consolidation. He notes, however, the differing stages of discovery in the two actions. This lawsuit is over two years old and discovery is nearly complete, and only one of the defendants in the new action has answered the complaint, which plaintiff amended on September 18, 2018. Moreover, there has been no discovery, and there have been no discovery conferences. Plaintiff therefore requests that the cases be consolidated under the index number for the new action — or, in the alternative, that this case be changed from a standard to a complex tracking status, thus allowing additional time for discovery.

The Court grants the motion for the reasons set forth by the parties. It is in the interest of judicial economy to try these cases together. The Court rejects plaintiff's request to consolidate the actions under the new action. The court's general rule is that cases must be consolidated under the older of the two cases, and this Court cannot deviate from this accepted practice for the convenience of the parties in this action. In addition, the Court does not change the tracking to complex status, as this case already is beyond the Court's standards and goals for complex cases. Moreover, there is no explanation for the fact that it took over two years from the filing of the instant case for plaintiff to learn the identity of and sue the maintenance companies and Carnegie Tower.

Accordingly, the Court therefore will allow the parties to engage in additional discovery, but it will set forth an expedited timetable for discovery. As Carnegie Tower and TF are related companies and are represented by the same law firm, the parties should be able to complete discovery as to Carnegie Tower in an accelerated fashion. Also, the parties to the instant case must have information about the maintenance companies which will enable them to streamline their demands and proceed with discovery promptly, and they can streamline the new parties' timetable by immediately providing them with all previously exchanged discovery. if necessary to protect the interests of the new defendants, the Court may sever the new action. Finally, the Court notes that the amended caption shall reflect the discontinuance against Unity Building Security, Inc.

Therefore, it is

ORDEED that the motion is granted, and the above-captioned action is consolidated in this Court with Sean Diamond v Carnegie Hall Tower II, LLC, ABM Industries, Inc. d/b/a ABM Janitorial Services Northeast, Inc., Klear Electrical Corp., and Unity Building Services, Inc., Index No. 157011/2018, and the consolidated action shall bear the following caption:

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY - - PART 34

_______________________________________

SEAN DIAMOND,

Plaintiff,Index No.: 152626/2016

against -

TF CORNERSTONE INC., CARNEGIE HALL

TOWER II, LLC, ABM INDUSTRIES, INC.

d/b/a ABM JANITORIAL SERVICES

NORTHEAST, INC., and KLEAR

ELECTRICAL CORP.

Defendant.

________________________________________

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

ORDERED that movant is directed to serve a copy of this order with notice of entry on the County Clerk (Room 141 B), who shall consolidate the papers in the actions; and it is further

ORDERED that by October 30, 2018, the movant and plaintiff are directed to provide (in hand) the new parties with copies of all discovery that they have provided exchanged in this action, along with a copy of this order; and it is further

ORDERED that all parties shall appear for a discovery conference in Part 34, 80 Centre Street, room 308 on November 1, 2018 at 2:15 pm.

Dated: October 24, 2018

ENTER:

____________________________________

CARMEN VICTORIA ST. GEORGE, J.S.C.