Preview
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
PRESENT: HON. MICHAEL R. CUEVAS
JUSTICE OF THE SUPREME COURT
STATE OF NEW YORK SUPREME COURT
COUNTY OF SCHENECTADY
DAVID PYUN,
Plaintiff,
Action No. 1
-against- lndex No.: 2023-44
A. MARSHALL CONTRACTING LLC
ANDREW MARSHALL,
Defendants.
PATRICK ARICO and THERESA ARICO,
DECISION AND ORDER
Plaintiffs, ON DEFENDANTS'
MOTION TO CHANGE
VENUE AND
PLAINTIFFS' CROSS-
MOTION TO JOIN TWO
ACTIONS
-against- lndex No.: 2023-1477
A MARSHALL CONTRACTING LLC Action No. 2 - Sought to
ANDREW MARSHALL, be joined with Action No.1
Defendants
APPEARANCES:
Robert A. Katz, Esq., Attorney for Plaintiff David Pyun
Ryan E. Manley, Esq., Conway, Donovan & Manley, PLLC Attorneys for Defendants A.
Marshall Contracting LLC and Andrew Marshall
MICHAEL R. CUEVAS. J.S.C.
7
1 of 6
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
INTRODUCTION
Marshall Contracting LLC and Andrew Marshall ("Defendants"), by motion seek an Order
transferring venue in this Action No. 2 (lndex No. 2023-1477) to Albany County.
Defendants additionally request an Order extending Defendants' time to Answer the
Complaint until twenty-days after the order deciding the venue motion; and for such other
and further relief as the Court deems just and proper. ln response, Plaintiffs cross-moved,
pursuant lo CPLR Section 601 (a) and (b), for joinder of Action No. 2 with Action No. 1,
David Pyun v. Marshall Contracting, LLC and Andrew Marshall, individually (lndex No.:
2023-44), for all purposes of discovery and trial with separate judgments.
This Court finds that Albany County is the proper venue for the present action and
that joinder of the Action No. 2 with Action No. 7 is improper, as insufficient common
questions of law and fact exist to warrant joinder.
STATEMENT OF FACTS
Plaintiffs in Action No.2 assert causes of action for breach of contract, fraud,
piercing the corporate veil, and dissolution. The Complaint asserts that Plaintiffs are
residents of Albany Countyl and that Defendant Marshall Contracting LLC maintains an
office in the County of Albany.2 Plaintiffs claim that Patrick Arico retained A. Marshall
Contracting LLC and its agent Andrew Marshall to do work " at 19 Heldervue Avenue,
Slingerlands, New York 12159 (the "Premises") pursuant to an "agreement.3
The agreement consists of two contracts.a The first contract is dated January 4,
2019 and the second contract is dated April 2, 2019.5 Plaintiffs assert that Defendants'
violations of the first contract were unknown to them at the time they executed the second
contract.6 Defendants have admitted that there are no heat ducts in the upstairs
I Anended Compl0i nl.
1
Amended Complaint f12.
1
a
Amended Complaint \j
Amended Complaint 113.
5
Amended Complqint 114.
6
Amended Comploint \6.
2
2 of 6
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
bathrooms.T Defendants also admit that the outlet and cable box in the dining area are
not connected.8 With regard to the second contract involving the deck, government
inspectors shut down the job.e Plaintiffs assert that other violations exist.10 Plaintiffs
further assert that they met all obligations under the contract.ll
ln support of their motion to change venue, Defendants allege that A. Marshall
Contracting LLC has its principal place of business in Albany County, New York12 and
that Andrew Marshall also resides in Albany County.13
ln opposition, Plaintiffs provided the Affidavits of Pyun and Arico. Through
discovery in Action No. 1, Pyun learned of the issues between Defendants and the
Plaintiffs in Action No. 2.14 Pyun and Arico each assert that the complaints in the two
actions involve common issues of law and fact.15 Specifically those purported
commonalities include:
Arico
. Electrical defects
. Lack of duct work or air conditioning
. Substandard, hazardous deck work
. A dryer vent hose connected to the range hood is not a vent pipe
. Disconnected heat ducts in both upstairs bathrooms.
. Arico paid $26, 000.00 for materials he does not have, nor were receipts provided
as requested.
Pvunl6
. Electrical defects
. Defective basement staircase work
o Lack of plumbing in the firslfloor bathroom, no tile work done, no ceiling fan, and
no electrical work done.
. Washer and dryer appliances were not installed. Appliances and cabinets were
not purchased.
o No floor work performed.
1
Amended Conplaint 117.
I Amended Complqint
lO.
e
Amended Couplaint 119.
to
Amended Complaint 1,10.
tt Amended Complaint
ll2.
t? Marshall Aff. \3.
t1 Marshall Aff.
f14.
t4 ld
ts Pyun Aff. \14,7; Arico Afi l\7,8,9.
t6 Aff. 22, 28, 29, 34, 35, 41,42, 49-76,
See, Memorondum of Low dnd Pyun 111121,
3
3 of 6
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
Purchase receipts not provided
LAW
The proper place for the venue of a trial is described in CPLR Secfion 503 (a), as
follows:
Except where otherwise prescribed by law, the place of trial
shall be in the county in which one of the parties resided when
it was commenced; the county in which a substantial parl of
the events or omissions giving rise to the claim occurred; or,
if none of the parties then resided in the state, in any county
designated by the plaintiff. A party resident in more than one
county shall be deemed a resident ofeach such county.
CPLR 5503 (a.). A partnership, or business, shall be deemed a resident of any county
where the principal office is located. CPIR $503 (d). A business is not deemed a resident
of every county where it has an office or transacts business. Lividini v. Goldstein,3T N.Y.
3d 1047 (2021). Defendants may properly serve a demand to change venue with or before
the service of an answer when the case is filed in an improper venue. CPLR $ 57 7. Where
a plaintiff selects an improper venue, they forfeit their right to choose the venue. Lynch v.
Cyprus Sash & Door Co.,272 A. D.2d 260 (1st Dept. 2000).
Plaintiffs' assert that rather than transfer venue of the Aico action (No. 2), it should
be joined with the Pyun aclion (No. 1) and remain in Schenectady County. Plaintiffs cite
to the inherent authority of the Supreme Court, and argue that common questions of law
and fact exist in the two actions, specifically with regard to fraud:
The Supreme Court has power over all other courts. lt is the
only court that can reach within or beyond its county and bring
to itself for consolidation or joint trial an action pending in any
other court of original jurisdiction.
Siegel and Connors, NY Practice,6th Ed., Section 128; CPLR 53016 (b); Spiegel v. 1085
Park Ave. Corp., 305 A.D. 2d 204 11st Dept. 2003); Wehringer v. Branigan, 232 A.D. 2d
206 (1st Dept. 1996). Plaintiffs contend that equity requires joinder. See, Kaminsky v.
Kahn,23A.D.2d213(1965). CPLRSection602(b)providesthatitiswithinthediscretion
of the Court to consolidate actions.
Plaintiffs additionally argue that lhe 2017 Amendment to CPLR Sectlon 503 (a)
that adds the word "substantial" so that venue could be lodged "in the county in which a
substantial part of the events or omissions giving rise to the claim occurred", supports
4
4 of 6
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
maintaining jurisdiction in Schenectady. Plaintiffs further argue that they could have
instituted the actions as a joint class action under CPLR Secfion 907. Defendants contend
that Plaintiffs have not established the existence of common questions of law or fact
warranting joinder, as the only commonality between the actions is the alleged breach of
contract.
ln the Arico case (Action No. 2), none of the parties reside in Schenectady County.
Moreover, all of the alleged events or omissions that give rise to Plaintiffs' claims took
place in Albany County, New York, at the Premises in question. There are no allegations
in the Complaint claiming residence of any party in Schenectady County, nor are there
allegations that any of the complained of conduct occurred in Schenectady County.
Plaintiffs have not presented any evidence to rebut Defendants assertion that Albany
County is the proper venue, or that Schenectady County is an improper venue for this
action. lt appears Plaintiffs simply desire to join this action with the Pyun matter for their
convenience. Actions No. 1 and 2 are separate actions, while each is brought against the
same Defendant, each involves a separate contract(s) and separate claims that certain
distinct, home improvement work was performed in the separate premises
u nsatisfactorily, The Plaintiffs in each action attempt to assert that since fraud was
perpetuated against them, joinder would be equitable and economically beneficial.
However, this is not a situation where both actions arise from the same occurrence or
series of occurrences so there is an insufficient showing of factual commonality. See,
Krembs v. NYU Langone Hosps., 214 AD3d 453 (1"1 Dept 2023) ( Motion to consolidate
two actions involving disparate medical procedures, time periods, medical records and
witnesses properly denied.) Consolidation is not appropriate to avoid a multiplicity of suits
and to minimize expenses unless there is an important, common question of law or fact.
American Holdings lnv. Corp. v. Josey,71 A.D.3d 927 (2d Dep't 2010); Gibbons v. Groat,
22 A.D.zd 996 (3d Dep't 1964). The mere fact that common disclosure would avoid
duplication of effort in related actions does not necessarily call for a consolidation of the
actions, since the parties may consent to the joint use of discovery material. Annunziato
v. City of New York,224 A.D.2d 31, (2d Dep't 1996).
5
5 of 6
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44
NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024
For the reasons stated above, it is hereby
ORDERED, that the motion to transfer venue of Action No. 2 Marshall Contracting
LLC and Andrew Marshall against Patrick Arico and Theresa Arico (lndex No. 2023-
1477),lo Albany County is hereby GRANTED; and it is further
ORDERED, that the cross-motion for joinder of Action No. 2, Patrick Arico and
Theresa Arico against Marshall Contracting LLC (lndex No.: 2023-1477 ) and Action No.
1, Pyun v. Marshall Contracting, LLC and Andrew Marshall, individually (lndex No.: 2023-
44), is hereby DENIED; and it is further
ORDERED, that Defendants' time to Answer the Complaint in Action No. 2 is
hereby stayed until twenty-days after the entry of this Order; and it is further
ORDERED, that this Decision constitutes the Order and Decision of this Court.
Dated: January 29,2024
at Schenectady, New York HON. MICHAEL R. CUEVAS
Supreme Court Justice
Papers Conside red
Defendants
Notice of Motion
Attorney Affirmation of Ryan Manley, Esq.
Exhibit A: Complaint
Exhibit B: 9127123 letler
Exhibit C: 9127123 Letler
Memorandum of Law in Support
Reply Memorandum
Plaintiffs
Notice of Cross-Motion for Joinder
Affirmation of David Pyun, Esq.
Affidavit of Patrick Arico
Affidavit of Robert A. Katz, Esq.
Memorandum of Law in Support
Reply Affirmation
Exhibit A: Amended Complaint in Pyun
Exhibit B: Amended Complaint in Arico
6
6 of 6
Preview
FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 PRESENT: HON. MICHAEL R. CUEVAS JUSTICE OF THE SUPREME COURT STATE OF NEW YORK SUPREME COURT COUNTY OF SCHENECTADY DAVID PYUN, Plaintiff, Action No. 1 -against- lndex No.: 2023-44 A. MARSHALL CONTRACTING LLC ANDREW MARSHALL, Defendants. PATRICK ARICO and THERESA ARICO, DECISION AND ORDER Plaintiffs, ON DEFENDANTS' MOTION TO CHANGE VENUE AND PLAINTIFFS' CROSS- MOTION TO JOIN TWO ACTIONS -against- lndex No.: 2023-1477 A MARSHALL CONTRACTING LLC Action No. 2 - Sought to ANDREW MARSHALL, be joined with Action No.1 Defendants APPEARANCES: Robert A. Katz, Esq., Attorney for Plaintiff David Pyun Ryan E. Manley, Esq., Conway, Donovan & Manley, PLLC Attorneys for Defendants A. Marshall Contracting LLC and Andrew Marshall MICHAEL R. CUEVAS. J.S.C. 7 1 of 6 FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 INTRODUCTION Marshall Contracting LLC and Andrew Marshall ("Defendants"), by motion seek an Order transferring venue in this Action No. 2 (lndex No. 2023-1477) to Albany County. Defendants additionally request an Order extending Defendants' time to Answer the Complaint until twenty-days after the order deciding the venue motion; and for such other and further relief as the Court deems just and proper. ln response, Plaintiffs cross-moved, pursuant lo CPLR Section 601 (a) and (b), for joinder of Action No. 2 with Action No. 1, David Pyun v. Marshall Contracting, LLC and Andrew Marshall, individually (lndex No.: 2023-44), for all purposes of discovery and trial with separate judgments. This Court finds that Albany County is the proper venue for the present action and that joinder of the Action No. 2 with Action No. 7 is improper, as insufficient common questions of law and fact exist to warrant joinder. STATEMENT OF FACTS Plaintiffs in Action No.2 assert causes of action for breach of contract, fraud, piercing the corporate veil, and dissolution. The Complaint asserts that Plaintiffs are residents of Albany Countyl and that Defendant Marshall Contracting LLC maintains an office in the County of Albany.2 Plaintiffs claim that Patrick Arico retained A. Marshall Contracting LLC and its agent Andrew Marshall to do work " at 19 Heldervue Avenue, Slingerlands, New York 12159 (the "Premises") pursuant to an "agreement.3 The agreement consists of two contracts.a The first contract is dated January 4, 2019 and the second contract is dated April 2, 2019.5 Plaintiffs assert that Defendants' violations of the first contract were unknown to them at the time they executed the second contract.6 Defendants have admitted that there are no heat ducts in the upstairs I Anended Compl0i nl. 1 Amended Complaint f12. 1 a Amended Complaint \j Amended Complaint 113. 5 Amended Complqint 114. 6 Amended Comploint \6. 2 2 of 6 FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 bathrooms.T Defendants also admit that the outlet and cable box in the dining area are not connected.8 With regard to the second contract involving the deck, government inspectors shut down the job.e Plaintiffs assert that other violations exist.10 Plaintiffs further assert that they met all obligations under the contract.ll ln support of their motion to change venue, Defendants allege that A. Marshall Contracting LLC has its principal place of business in Albany County, New York12 and that Andrew Marshall also resides in Albany County.13 ln opposition, Plaintiffs provided the Affidavits of Pyun and Arico. Through discovery in Action No. 1, Pyun learned of the issues between Defendants and the Plaintiffs in Action No. 2.14 Pyun and Arico each assert that the complaints in the two actions involve common issues of law and fact.15 Specifically those purported commonalities include: Arico . Electrical defects . Lack of duct work or air conditioning . Substandard, hazardous deck work . A dryer vent hose connected to the range hood is not a vent pipe . Disconnected heat ducts in both upstairs bathrooms. . Arico paid $26, 000.00 for materials he does not have, nor were receipts provided as requested. Pvunl6 . Electrical defects . Defective basement staircase work o Lack of plumbing in the firslfloor bathroom, no tile work done, no ceiling fan, and no electrical work done. . Washer and dryer appliances were not installed. Appliances and cabinets were not purchased. o No floor work performed. 1 Amended Conplaint 117. I Amended Complqint lO. e Amended Couplaint 119. to Amended Complaint 1,10. tt Amended Complaint ll2. t? Marshall Aff. \3. t1 Marshall Aff. f14. t4 ld ts Pyun Aff. \14,7; Arico Afi l\7,8,9. t6 Aff. 22, 28, 29, 34, 35, 41,42, 49-76, See, Memorondum of Low dnd Pyun 111121, 3 3 of 6 FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 Purchase receipts not provided LAW The proper place for the venue of a trial is described in CPLR Secfion 503 (a), as follows: Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; the county in which a substantial parl of the events or omissions giving rise to the claim occurred; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident ofeach such county. CPLR 5503 (a.). A partnership, or business, shall be deemed a resident of any county where the principal office is located. CPIR $503 (d). A business is not deemed a resident of every county where it has an office or transacts business. Lividini v. Goldstein,3T N.Y. 3d 1047 (2021). Defendants may properly serve a demand to change venue with or before the service of an answer when the case is filed in an improper venue. CPLR $ 57 7. Where a plaintiff selects an improper venue, they forfeit their right to choose the venue. Lynch v. Cyprus Sash & Door Co.,272 A. D.2d 260 (1st Dept. 2000). Plaintiffs' assert that rather than transfer venue of the Aico action (No. 2), it should be joined with the Pyun aclion (No. 1) and remain in Schenectady County. Plaintiffs cite to the inherent authority of the Supreme Court, and argue that common questions of law and fact exist in the two actions, specifically with regard to fraud: The Supreme Court has power over all other courts. lt is the only court that can reach within or beyond its county and bring to itself for consolidation or joint trial an action pending in any other court of original jurisdiction. Siegel and Connors, NY Practice,6th Ed., Section 128; CPLR 53016 (b); Spiegel v. 1085 Park Ave. Corp., 305 A.D. 2d 204 11st Dept. 2003); Wehringer v. Branigan, 232 A.D. 2d 206 (1st Dept. 1996). Plaintiffs contend that equity requires joinder. See, Kaminsky v. Kahn,23A.D.2d213(1965). CPLRSection602(b)providesthatitiswithinthediscretion of the Court to consolidate actions. Plaintiffs additionally argue that lhe 2017 Amendment to CPLR Sectlon 503 (a) that adds the word "substantial" so that venue could be lodged "in the county in which a substantial part of the events or omissions giving rise to the claim occurred", supports 4 4 of 6 FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 maintaining jurisdiction in Schenectady. Plaintiffs further argue that they could have instituted the actions as a joint class action under CPLR Secfion 907. Defendants contend that Plaintiffs have not established the existence of common questions of law or fact warranting joinder, as the only commonality between the actions is the alleged breach of contract. ln the Arico case (Action No. 2), none of the parties reside in Schenectady County. Moreover, all of the alleged events or omissions that give rise to Plaintiffs' claims took place in Albany County, New York, at the Premises in question. There are no allegations in the Complaint claiming residence of any party in Schenectady County, nor are there allegations that any of the complained of conduct occurred in Schenectady County. Plaintiffs have not presented any evidence to rebut Defendants assertion that Albany County is the proper venue, or that Schenectady County is an improper venue for this action. lt appears Plaintiffs simply desire to join this action with the Pyun matter for their convenience. Actions No. 1 and 2 are separate actions, while each is brought against the same Defendant, each involves a separate contract(s) and separate claims that certain distinct, home improvement work was performed in the separate premises u nsatisfactorily, The Plaintiffs in each action attempt to assert that since fraud was perpetuated against them, joinder would be equitable and economically beneficial. However, this is not a situation where both actions arise from the same occurrence or series of occurrences so there is an insufficient showing of factual commonality. See, Krembs v. NYU Langone Hosps., 214 AD3d 453 (1"1 Dept 2023) ( Motion to consolidate two actions involving disparate medical procedures, time periods, medical records and witnesses properly denied.) Consolidation is not appropriate to avoid a multiplicity of suits and to minimize expenses unless there is an important, common question of law or fact. American Holdings lnv. Corp. v. Josey,71 A.D.3d 927 (2d Dep't 2010); Gibbons v. Groat, 22 A.D.zd 996 (3d Dep't 1964). The mere fact that common disclosure would avoid duplication of effort in related actions does not necessarily call for a consolidation of the actions, since the parties may consent to the joint use of discovery material. Annunziato v. City of New York,224 A.D.2d 31, (2d Dep't 1996). 5 5 of 6 FILED: SCHENECTADY COUNTY CLERK 01/29/2024 03:40 PM INDEX NO. 2023-44 NYSCEF DOC. NO. 93 RECEIVED NYSCEF: 01/29/2024 For the reasons stated above, it is hereby ORDERED, that the motion to transfer venue of Action No. 2 Marshall Contracting LLC and Andrew Marshall against Patrick Arico and Theresa Arico (lndex No. 2023- 1477),lo Albany County is hereby GRANTED; and it is further ORDERED, that the cross-motion for joinder of Action No. 2, Patrick Arico and Theresa Arico against Marshall Contracting LLC (lndex No.: 2023-1477 ) and Action No. 1, Pyun v. Marshall Contracting, LLC and Andrew Marshall, individually (lndex No.: 2023- 44), is hereby DENIED; and it is further ORDERED, that Defendants' time to Answer the Complaint in Action No. 2 is hereby stayed until twenty-days after the entry of this Order; and it is further ORDERED, that this Decision constitutes the Order and Decision of this Court. Dated: January 29,2024 at Schenectady, New York HON. MICHAEL R. CUEVAS Supreme Court Justice Papers Conside red Defendants Notice of Motion Attorney Affirmation of Ryan Manley, Esq. Exhibit A: Complaint Exhibit B: 9127123 letler Exhibit C: 9127123 Letler Memorandum of Law in Support Reply Memorandum Plaintiffs Notice of Cross-Motion for Joinder Affirmation of David Pyun, Esq. Affidavit of Patrick Arico Affidavit of Robert A. Katz, Esq. Memorandum of Law in Support Reply Affirmation Exhibit A: Amended Complaint in Pyun Exhibit B: Amended Complaint in Arico 6 6 of 6