Oldakowski v Masem

[*1] Oldakowski v Masem 2020 NY Slip Op 51157(U) Decided on October 6, 2020 Supreme Court, Queens County Weiss, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2020
Supreme Court, Queens County

Joannna Oldakowski, et al., Plaintiffs,

against

Bryan S. Masem, et al., Defendants.



720121/19
Allan B. Weiss, J.

The papers numbered EF Document Numbers 73-81, 103-104, 110-113, 121-123, 124-127, & 135, found on NYSCEF, were read on this motion, under Motion Sequence Number 1, by defendant Rockaway Beach Blvd. Construction Co., LLC to dismiss the Second Amended Verified Complaint and all cross-claims asserted by the moving defendant.

The papers numbered EF Document Numbers 86-95, 105-108, 1116-118, 128-130, & 134, found on NYSCEF, were read on this motion, under Motion Sequence Number 2, by defendant Yeh Taising, Inc. and the cross-motion by defendant Benjamin Development Co. Inc. both seeking to transfer this case to Supreme Court, Suffolk County.

On August 9, 2019, three workers, the plaintiffs decedent and two colleagues, were installing fiber-optic cables on utility poles on North Bicycle Path in Brookhaven, in Suffolk County, New York. The three men had attached the cable to the utility pole across the street and in front of 614 Bicycle Path and had let the cable slack down that pole and lay across the road. They intended to attach the cable to the top of the utility pole in front of 617 North Bicycle Path, and to pull it tautly over the roadway and then into a building at that address. Before they could pull the cable tautly, a pickup vehicle, owned and operated by defendant Bryan S. Masem, drove over it, entangling it on the truck and creating the dynamics of a sling-shot force effect that flung the three workers down the road. Arthur Oldakowski, the plaintiff's son, died from his injuries. His two colleagues were injured and have commenced lawsuits in Supreme Court, Suffolk County. See, Corrales v Masem, Index No. 601705/2020, and Music v Masem, 602167/2020, both filed on NYSCEF.

The present action, in Queens, was commenced in 2019, where the plaintiff-mother had resided with her son.

The two actions in Suffolk County were commenced in 2020. Justice Vincent J. Martorana, of Supreme Court, Suffolk County, assigned to the two actions involving the injured two workers - - Corrales v Masem, Index No. 601705/2020, and Music v Masem, 602167/2020 - - signed Orders to Show Cause in each of them that are now sub judice on whether, inter alia, the two actions should be consolidated for all purposes. See Orders by Justice Martorana in Corrales v Masem, Index No. 601705/2020, dated July 14, 2020, found at EF 32 of that action, and Music v Masem, Index No. 602167/2020, dated July 29, 2020, found at EF 35 of that action. The Orders to Show Cause issued by that Court also involve other issues, including whether a late notice of claim should be allowed against the Long Island Power Authority and whether the notice of claim filed with the Public Service Electric and Gas Company, sued herein as PSEG Long Island LLC, should be amended.

On July 29, 2020, the same date that Justice Martorana signed the second Order to Show Cause on the issue of whether the two actions before that Court should be consolidated, a motion was filed in this case, under Motion Sequence Number 2, seeking a transfer of venue from Queens County to Suffolk County.

This Court has also been presented with two motions in this wrongful death action, requesting the dismissal of one defendant under Motion Sequence Number 1, and a change of venue, under Motion Sequence Number 2, from this Court to Supreme Court, Suffolk County. Both Motion Sequence Numbers 1 and 2 are combined for decision in this order since they are interrelated, as discussed below.

In seeking a change of venue to Suffolk County, the defendants argue that, pursuant to CPLR 510(3), the convenience of material witnesses requires a transfer from this Court to Suffolk County and, alternatively, that defendant PSEG Long Island LLC is a "public authority" as used in CPLR 505(a), that would mandate such a transfer. The burden on showing a transfer based on convenience is that of the movant and the cross-movant seeking a transfer. See, McManmon v. York Hill Hous., Inc., 73 AD3d 1137, 1138 (2nd Dept. 2010); Radatron, Inc. v. Z. Z. Auto Tel. Inc., 30 AD2d 760, 761 (4th Dept. 1968). Neither the movant-defendant or the cross-movant-defendants, under Motion Sequence Number 2, seeking a transfer of venue have submitted affidavits by witnesses detailing the hardships they would potentially encounter if the venue were maintained by this Court in Queens County. The only affidavit submitted by a party was that of the plaintiff who attested to her and her son's residency in Queens stating, without elaboration, that a transfer to Suffolk County would pose an "undue hardship." See, EF Doc. No. 130, para. 5, p.2.

Showing the relatedness and interdependency of the two motions filed in this case, this Court notes that the identical motion to dismiss by defendant Rockaway Beach Blvd. Construction Co., LLC, here, under Motion Sequence Number 2 [EF Doc. No. 73, filed on July 9, 2020, and marked submitted on Sept. 23, 2020], is virtually identical to the same motion to dismiss by the same defendant, represented by the same counsel, filed on June 29, 2020, and marked submitted to that Court on September 10, 2020]. See, Corrales v Masem, Index No. 601705/2020, EF Doc. No. 13, and Music v Masem, 602167/2020, EF Doc. No. 12.

It is imperative that litigants conserve judicial time, effort, resources. It is even more fundamental to judicial integrity that Courts not reach different conclusions on the same facts. In both cases in Supreme Court, Suffolk County, Corrales v Masem, Index No. 601705/2020, and Music v Masem, 602167/2020, the basically identical motion to dismiss by the same moving defendant, represented by the same counsel, was marked fully submitted on Sept. 10, 2020, who filed the same motion in this action and caused it to be submitted to this Court almost two weeks later [on Sept. 23, 2020]. It is important that this Court avoid reaching an inconsistent adjudication or contradictory result with that of Supreme Court, Suffolk County, on the same motion to dismiss, over the identical set of facts.[FN1]

The interests of judicial economy and the judicial system's overriding interest in the goals of avoiding inconsistent adjudications and preserving judicial resources compel that this Court defer to Supreme Court, Suffolk County on the issue of the motion to dismiss. See, HSBC Bank, USA v. Despot, 130 AD3d 783, 784 (2nd Dept. 2015); Zupich v. Flushing Hosp. & Med. Ctr., 156 AD2d 677, 678 (2nd Dept. 1989). A transfer of the present action to Supreme Court, Suffolk County, would also potentially eliminate the possibility of inconsistent verdicts that might result from separate trials by the three plaintiffs, concerning the same accident, defendants, facts, and circumstances. See, Morell v. Basa, 300 AD2d [*2]134 (1st Dept. 2002).

As a consequence of deferring to Supreme Court, Suffolk County, on the merits of the issue of dismissal, the interests of judicial economy thus militate that, in the providential exercise of judicial discretion, that this Court transfer the within action to Suffolk County.

A motion and cross-motion seeking to change the venue on discretionary grounds must be made in the action where the action is currently pending. See, Public Serv. Mut. Ins. Co. v. ITT Hartford Group, Inc., 249 AD2d 78 (2nd Dept. 1998); Voorhees v. Babcok & Wilcox Corp., 150 AD2d 677 (2nd Dept. 1989). In the present case, the movant and cross-movant sought a transfer based on CPLR 510(3), where "the convenience of material witnesses and the ends of justice will be promoted by the change." This Court determines that, although the movant and cross-movant have failed to meet their burden of demonstrating that a change or transfer of venue is warranted based on the convenience of witnesses, this Court, in its discretion, determines that a change of venue is warranted based on "the ends of justice." See, Public Serv. Mut. Ins. Co. v. ITT Hartford Group, Inc., 249 AD2d 78, supra; Voorhees v. Babcok & Wilcox Corp., 150 AD2d 677, supra.

Under Motion Sequence Number 2, both the motion and the cross motion seeking a change of venue is granted. It is further ORDERED, that the Clerk of this Court, upon being served with a copy of this Order with Notice of Entry and payment of any required fees, is directed to transfer all papers in this case to the Clerk of Supreme Court, Suffolk County.

The motion to dismiss, under Motion Sequence Number 1, is denied with leave to renew in Supreme Court, Suffolk County.

Dated: October 6, 2020

DNo.62

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J.S.C. Footnotes

Footnote 1:See the discussion in Islam v. Brown, 24 Misc 3d 1248(A), 2009 WL 2915268, at *2, 2009 NY Slip Op. 51913(U) (Sup. Ct. Queens County 2009), and People v. Diaz, 179 Misc 2d 946, 950 (Sup. Ct. New York County 1999), discussing the diametrically opposite results of the First Department, by two separate panels, reviewing the same set of facts, in People v. Andujar, 160 AD2d 403 (1st Dept. 1990] with People v. Matos, 160 AD2d 435, 437-438 (1st Dept 1990). The divergent results are discussed and underscored in an article by Daniel Wise, "1 Case, 2 Appeals, 2 Rulings: How Come? First Department Fail-Safe Measures in Contradictory Decisions in Criminal Case," New York Law Journal, May 7, 1990, at 1, col. 5.