Nunez v 608-614 W. 189th St. LLC

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Nunez v 608-614 W. 189th St. LLC 2021 NY Slip Op 32315(U) November 16, 2021 Supreme Court, New York County Docket Number: Index No. 158901/2014 Judge: Debra A. James 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. [* 1] INDEX NO. 158901/2014 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 11/16/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. DEBRA JAMES 59 Justice ----------------------------------------------------------------- ----------------X IRIS NUNEZ, INDEX NO. MOTION DATE Plaintiff, 158901/2014 08/07/2020 004 MOTION SEQ. NO. - V - DECISION + ORDER ON MOTION 608-614 WEST 189TH STREET LLC, Defendant. ------------------------------------------------------------------- --------------X 608-614 WEST 189TH STREET LLC Third-Party Index No. 595125/2016 Plaintiff, -againstB07 CONSTRUCTION CORP., Defendant. --------------------------------------------- -----------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 122, 123, 124, 125, 126,127,128,129,130,131,132,133,134,135,136,137,138,139,140,141,142,143,144,145,146, 147, 148, 149, 150, 151, 154, 155, 156, 157, 158, 159, 160 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL ORDER Upon the foregoing documents, it is ORDERED that plaintiff's motion to amend the complaint to add third-party defendant BO7 Constr. Corp. as a direct defendant and the amended complaint in the proposed form annexed to the moving papers shall be deemed served upon service of a copy of this order with notice of entry thereof; and it is further 158901/2014 NUNEZ, IRIS A. vs. 608-614 WEST 189TH STREET LLC Motion No. 004 1 of 4 Page 1 of4 [* 2] INDEX NO. 158901/2014 NYSCEF DOC. NO. 185 ORDERED RECEIVED NYSCEF: 11/16/2021 that the defendants shall serve an answer to the amended complaint within twenty (20) days of such service; and it is further ORDERED to action with the extent plaintiff seeks Nunez v B07 Cons tr. New York County, Index No. Corp. to consolidate this (New York Supreme Court, 159323/2019), such motion is DENIED; and it is further ORDERED that counsel shall post on NYSEF a proposed Status Conference Order or competing proposed Status Conference Orders on January 18, 2022. DECISION Plaintiff moves to amend the complaint to add third-party defendant B07 Construction Corp. as a direct defendant pursuant to CPLR 3025 and 203 and to consolidate this action with Nunez v B07 Constr. Corp. (Index No. 159323/2019). The court shall grant the former relief and deny the latter. The general rule is that absent prejudice, a party, upon application, should be freely granted the right to assert claims against parties, such as third-party litigants, present in the litigation absent a showing of prejudice to the parties sought to be claimed against. As stated by the Court: "[t]hus, from the time of the service of the third-party complaint, the third-party defendants were fully parties to the action with full notice that they may ultimately be charged with the complete liability. In the circumstances, we think that it is desirable to permit the plaintiffs' 158901/2014 NUNEZ, IRIS A. vs. 608-614 WEST 189TH STREET LLC Motion No. 004 2 of 4 Page 2 of 4 [* 3] INDEX NO. 158901/2014 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 11/16/2021 amended complaint as against the third-party defendants to relate back at least to the time of the service of the third-party complaint, thus enabling the court to render complete justice among all the parties." Holst v Edinger, 93 AD2d 313, 316 (1 st Dept 1983). Third-party defendant BO7 Constr. Corp. has not demonstrated any prejudice sufficient to justify denying plaintiff's application to add it as a direct defendant and to deem the interposed claims arising out of the incident as timely (CPLR 203). Therefore, the court shall grant plaintiff the right to amend her pleading. However, with respect to plaintiff's motion to consolidate, the court in its discretion shall deny the relief sought at this late juncture as unnecessary. By Order dated September 22, 2020, the court in the other action (Index No. 159323/2019, NYSCEF Doc. No. 62, Freed, J.) granted dismissal of plaintiff's complaint against all the corporate defendants except for BO7 Constr. Corp. and, by subsequent Order dated June 9, 2021 (Index No. 159323/2019, NYSCEF Doc. No. 74, Hom, J.), granted default judgments against defendants MD Ashraf Ali and Ashraf Ali, P.E. 158901/2014 NUNEZ, IRIS A. vs. 608-614 WEST 189TH STREET LLC Motion No. 004 3 of 4 Page 3 of 4 [* 4] INDEX NO. 158901/2014 NYSCEF DOC. NO. 185 P.C. RECEIVED NYSCEF: 11/16/2021 As plaintiff can pursue the claims against B07 Constr. Corp. herein by amendment and plaintiff's direct claims against the other proposed consolidated defendants have been determined in the other action, consolidation does not appear to be appropriate at this late juncture. J)- ~ JI - } ~ 20211116173344DJAMES5710C99ADFCD4EC1839A27991E140128 11/16/2021 DATE CHECK ONE: DEBRA JAMES, J.S.C. CASE DISPOSED GRANTED • ~ DENIED NON-FINAL DISPOSITION GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 158901/2014 NUNEZ, IRIS A. vs. 608-614 WEST 189TH STREET LLC Motion No. 004 4 of 4 • • OTHER REFERENCE Page4 of 4

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