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FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------X
326 21ST STREET LLC,
Plaintiff, Index No. 514069/2019
-against- AFFIRMATION IN
SUPPORT OF
328 21 ST LLC, NYB BUILDERS INC., MOTION TO
and REGAL RECONSTRUCTION CORP, CONSOLIDATE
and ZUMBAS BUILDERS INC.
Defendants.
-----------------------------------------X
NYB BUILDERS INC.,
Third-Party Plaintiff,
-against-
ZUMBA’S BUILDERS INC.
Third-Party Defendant.
-----------------------------------------X
328 21 ST LLC,
Second Third-Party Plaintiff,
-against-
INFO OF ENGINEERING, P.C., and
BAYROCK INSURANCE AGENCY.
Second Third-Party Defendant.
-----------------------------------------X
CORY A. SIMMONS, an attorney duly admitted to practice law before the Courts of
the state of New York, hereby affirms the following to be true under penalties of perjury:
1. I am associated with the firm London Fischer, LLP, attorneys for
Defendant, NYB Builders, Inc (“NYB”), and, as such, I am fully familiar with the facts and
circumstances set forth herein based upon the files maintained by this office.
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2. This Affirmation is submitted in support of NYB’s motion:
a. Pursuant to CPLR §602(a), consolidating for joint discovery and trial
the instant action captioned 326 21st Street LLC v. 328 21st St LLC,
NYB Builders Inc., and Regal Construction Corp., pending in the
Supreme Court, Kings County, Index No. 514069/2019 and the action
captioned The First Liberty Insurance Corporation A/S/O Jessica
Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction Corp.,
and Zumba Builders, pending in Supreme Court, Kings County, Index
No. 519528/2021, under the caption:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------X
326 21ST STREET LLC & THE FIRST LIBERTY
INSURANCE CORPORATION A/S/O JESSICA BLUE,
Plaintiff,
Index No. 519528/2021
-against-
328 21 ST LLC, NYB BUILDERS INC.,
and REGAL RECONSTRUCTION CORP,
and ZUMBAS BUILDERS INC.
Defendants.
-----------------------------------------X
NYB BUILDERS INC.,
Third-Party Plaintiff,
-against-
ZUMBA’S BUILDERS INC.
Third-Party Defendant.
-----------------------------------------X
328 21 ST LLC,
Second Third-Party Plaintiff,
-against-
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INFO OF ENGINEERING, P.C., and
BAYROCK INSURANCE AGENCY.
Second Third-Party Defendant.
-----------------------------------------X
b. as these two actions arise out of the same construction project,
involve common questions of law and fact, and involve
substantially similar parties;
c. For such other and further relief as the Court may deem just,
equitable, and proper.
PRELIMINARY STATEMENT
3. These two actions arise from the same construction project, located at 328
21st Street, Brooklyn, New York, 11215 (“Construction Project”) that allegedly caused property
damage to two adjacent properties located at 326 21st Street, Brooklyn New York 11215 (“Action
No. 1”) and 330 21st Street, Brooklyn, New York, 11215 (“Action No. 2”) on August 30, 2018.
4. This motion seeks to consolidate Action No. 1 (Index No. 514069/2019)
with Action No. 2 (Index No. 519528/2021) also pending in Supreme Court, Kings County.
Consolidation is necessary and appropriate because the two actions involve the same common
questions of law and fact, as well as substantially similar parties.
FACTS AND PROCEDURAL HISTORY
Action No. 1
5. Plaintiff in the instant action seeks recovery for alleged damages to real
property located at 326 21st Street, Brooklyn New York 11215 resulting from excavation activities
at the adjoining premises located at 328 21st Street, Brooklyn on August 30, 2018.
6. On June 25, 2019, Plaintiff commenced the instant action by Service of
Summons and Complaint asserting, among other things, causes of action for negligence, trespass,
and nuisance. See, Summons and Complaint, attached as Exhibit “A”.
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7. On October 2, 2019, Regal Construction Corp (hereinafter “Regal”) filed a
motion to dismiss in lieu of filing an answer to plaintiff’s complaint. This motion was resolved by
Court Order granting dismissal of plaintiff’s causes of action for nuisance and trespass against all
defendants. A Copy of the Court’s Order is annexed as Exhibit “B”.
8. On November 1, 2019, NYB joined issue by service of an Answer with
Cross-Claims. Thereafter, on November 5, 2019, Plaintiff filed a Supplemental Summons and
Amended Complaint asserting direct claims against Zumba’s. On November 19, 2019, NYB filed
an Answer with Cross-Claims to Plaintiff’s Amended Complaint. Copies of the pleadings are
annexed as Exhibit “C”.
9. On November 4, 2019, NYB commenced a third-party action against
Zumba Builder’s Inc (hereinafter “Zumbas”) by service of a third-party summons and complaint.
A copy of NYB’s Third-Party Summons and Complaint is annexed as Exhibit “D”.
10. On November 20, 2020, Zumba’s joined issue by service of Answer with
Cross-Claims to Plaintiff’s Amended Complaint, as well as an Answer to NYB’s Third-Party
Complaint. Copies of Zumba’s Answers are annexed as Exhibit “E”.
11. On December 3, 2020, 328 21st Street filed a Second Third-Party
Complaint against Info of Engineering, P.C. and Bayrock Insurance Agency. Copies of 328 21 st
Street’s Second Third-Party Complaint and Amended Second Third-Party Complaint dated
February 24, 2021 are annexed as Exhibit “F”.
12. On April 2, 2021 and April 16, 2021, respectively, Bayrock Insurance
Agency and Info of Engineering, P.C. joined issue by service of an Answer to 328 21st Street’s
Second Third-Party Amended Complaint. Copies of these pleadings are annexed as Exhibit “G”.
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Action No. 2
13. The second action captioned, The First Liberty Insurance Corporation
A/S/O Jessica Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction Corp., and Zumba
Builders, pending in Supreme Court, Kings County, Index No. 519528/2021, seeks recovery for
alleged property damages to 330 21st Street, the same street as above, as a result of excavation
activities occurring on August 30, 2018 at the adjoining premises located at 328 21st Street,
Brooklyn New York. See, Summons and Complaint, attached as Exhibit “H”.
14. On August 2, 2021, Plaintiff commenced Action No. 2 by filing of
Summons and Complaint asserting, among other things, causes of action for negligence, trespass,
and nuisance. See, Exhibit “H”.
15. Upon information and belief, Plaintiff is the owner of a residential property
located at 330 21st Street, Brooklyn, New York. Plaintiff’s property adjoins a property located at
328 21st Street. Plaintiff alleges property damages as a result of excavation activities, which
occurred on or about August 30, 2018 at 328 21st Street. See, Exhibit “H”.
16. Plaintiff alleges that it sustained damages attributable to, among other
things, failure to protect its property during construction work at 328 21st Street, failure to take
appropriate efforts to underpin, shore or reinforce the existing foundation of plaintiff’s property in
preparation for construction, improper excavation causing damage to the subject premises,
including the rear yard. See, Exhibit “H”.
17. On January 21, 2022, Regal joined issue by service of Answer with Cross-
Claims. A Copy of Regal’s Answer is annexed as Exhibit “I”.
18. On May 17, 2022, NYB moved to consolidate these two Actions as they
arise out of the same construction project, involve common questions of law and fact, and involve
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substantially similar parties and to dismiss Plaintiff’s cause of action for trespass and nuisance. A
copy of NYB’s Partial Motion to Dismiss and Motion to Consolidate is annexed as Exhibit “J”.
19. This motion to consolidate is being made returnable on the same date as the
motion to consolidate filed in Action No. 2.
20. The caption of Action No. 2 is:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-------------------------------------------x
THE FIRST LIBERTY INSURANCE
CORPORATION A/S/O JESSICA BLUE,
Index No.
Plaintiff, 519528/2021
-against-
328 21 ST LLC, NYB BUILDERS INC, REGAL
RECONSTRUCTION CORP. and ZUMBAS BUILDERS INC.,
Defendants.
-------------------------------------------x
ARGUMENT
POINT I
ACTION NO. 1 AND ACTION NO. 2 SHOULD BE
CONSOLIDATED BECAUSE THE ACTIONS ARISE OUT
OF THE SAME EXACT INCIDENT
21. The above captioned actions should be consolidated for the purposes of joint
pre-trial discovery and trial because each involves common questions of law and fact. Both actions
allege damages stemming from the excavation of the building located at 328 21st Street occurring
on August 30, 2018. See, Exhibit A & Exhibit H.
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22. CPLR § 602(a) states in relevant part:
Where actions involving a common question of law
or fact are pending before court, the court, upon
motion, may order the actions consolidated, and may
make such other orders concerning proceedings
therein as may tend to avoid unnecessary costs or
delay.
23. Under § CPLR 602(a), the standard for uniting separate actions is the same,
regardless of whether the court orders consolidation or joint trial. Consolidation is warranted where
actions involve common questions of law or fact. See, CPLR § 602; Atherton v. 21 East 92nd St.
Corp., 149 A.D.2d 354 (1st Dep’t 1989); Nikolaidis v. Makita Corp., et al., 242 A.D.2d 322 (2d
Dep’t. 1997) (granting motion to consolidate where both actions shared common issues of law and
fact and defendant would not suffer prejudice to a substantial right.); GAM Prop. Corp. v. Sorrento
Lactalis, Inc., 41 A.D.3d 645 (2d Dep’t 2007). The test is usually met if evidence that would be
relevant and admissible in one action would also be admissible in the other. Maigur v. Saratogian,
Inc., 1975, 47 A.D.2d 982, 983, 367 N.Y.S.2d 114, 116 (3d Dep’t).
24. In Action No. 1, plaintiff alleges damages to 326 21st Street property
resulting from excavation activities which occurred on August 30, 2018 at the adjacent 328 21st
Street property. See, Exhibit A.
25. In Action No. 2, plaintiff alleges damages to 330 21st Street property
resulting from excavation activities which occurred on August 30, 2018 at the adjacent 328 21st
Street property. See, Exhibit H.
26. Both actions allegedly arise out of construction activities at the same 328
21st Street premises. The focus of each action is to recover damages allegedly caused as a result of
excavation at that property.
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27. Discovery in the two actions would be performed in an economic and
consistent manner if they are consolidated, and courts favor consolidation in the name of judicial
economy and efficiency.
28. Furthermore, that the two actions may be in different procedural stages, is
not prejudicial to plaintiff. Any potential prejudice can be avoided by affording plaintiff in the
later filed action the opportunity to complete discovery on an expedited basis. See, Progressive,
782 N.Y.S.2d at 22; Fischer 40th & 3rd Co. v. Welsbach Elec. Corp., 699 N.Y.S.2d 21, 23 (1st Dep’t
1999). Alternatively, the Court has discretion to make appropriate orders requiring additional
disclosures to prevent any injustice. See, Morell v. Basa, 752 N.Y.S.2d 299, 300 (1st Dep’t. 2002).
29. Indeed, Action No. 1 has not yet been placed on the trial calendar and
discovery is still ongoing. Cf. Goldman v. Rosen, 789 N.Y.S.2d 879 (1st Dep’t. 2005) (motion court
properly denied consolidation motion where pending Civil Court proceeding had already been
placed on trial calendar); Abrams v. Port Auth. Trans-Hudson Corp., 766 N.Y.S.2d 429, 430 (1st
Dep’t. 2003) (motion court denied consolidation where Civil Court action sought to be
consolidated was placed on the trial calendar and Supreme Court action was in early discovery
phase).
30. In Action No. 1, proper discovery has been exchanged and only the
deposition of the plaintiff has been conducted.
31. In Action No. 2, no paper discovery or depositions have taken place.
32. That plaintiff in Action No. 2 delayed in filing the complaint should not be
cause to prevent defendants from evaluating all evidence to mount a complete and full defense, or
requiring defendants to produce individuals for testimony in two separate actions, allegedly
stemming from the same incident.
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33. Because discovery in the related Actions will overlap considerably, it would
be prejudicial to all defendants if these two actions are not consolidated for purpose of discovery
as each party would be required to produce an individual for deposition two separate times
regarding the same set of underlying facts. The two actions arise out of the same construction
project and require deposition testimony from the same parties.
34. It is respectfully submitted that in the interests of justice, that the instant
Motion should be granted in its entirety and that Action No. 1 and Action No. 2, be consolidated
for purpose of discovery and trial.
WHEREFORE, Defendant NYB respectfully requests this Court grants an Order
a. Pursuant to CPLR § 602(a), consolidating for joint discovery and trial the action
captioned 326 21st Street LLC v. 328 21st St LLC, NYB Builders Inc., and Regal
Construction Corp., pending in the Supreme Court, Kings County, Index No.
514069/2019 and the action captioned The First Liberty Insurance Corporation
A/S/O Jessica Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction
Corp., and Zumba Builders, pending in Supreme Court, Kings County, Index
No. 519528/2021, as these two actions arise out of the same construction
project, involve common questions of law and fact, and involve substantially
similar parties; and
b. For such other and further relief as the Court may deem just, equitable, and
proper.
Dated: New York, New York
April 19, 2022
LONDON FISCHER LLP
/s/ Cory A. Simmons
By: ______________________________
Cory A. Simmons
Attorneys for Defendant
NYB Builders Inc.
59 Maiden Lane
New York, New York 10038
(212) 972-1000
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FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------X 326 21ST STREET LLC, Plaintiff, Index No. 514069/2019 -against- AFFIRMATION IN SUPPORT OF 328 21 ST LLC, NYB BUILDERS INC., MOTION TO and REGAL RECONSTRUCTION CORP, CONSOLIDATE and ZUMBAS BUILDERS INC. Defendants. -----------------------------------------X NYB BUILDERS INC., Third-Party Plaintiff, -against- ZUMBA’S BUILDERS INC. Third-Party Defendant. -----------------------------------------X 328 21 ST LLC, Second Third-Party Plaintiff, -against- INFO OF ENGINEERING, P.C., and BAYROCK INSURANCE AGENCY. Second Third-Party Defendant. -----------------------------------------X CORY A. SIMMONS, an attorney duly admitted to practice law before the Courts of the state of New York, hereby affirms the following to be true under penalties of perjury: 1. I am associated with the firm London Fischer, LLP, attorneys for Defendant, NYB Builders, Inc (“NYB”), and, as such, I am fully familiar with the facts and circumstances set forth herein based upon the files maintained by this office. {N2147288.1 } 1 1 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 2. This Affirmation is submitted in support of NYB’s motion: a. Pursuant to CPLR §602(a), consolidating for joint discovery and trial the instant action captioned 326 21st Street LLC v. 328 21st St LLC, NYB Builders Inc., and Regal Construction Corp., pending in the Supreme Court, Kings County, Index No. 514069/2019 and the action captioned The First Liberty Insurance Corporation A/S/O Jessica Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction Corp., and Zumba Builders, pending in Supreme Court, Kings County, Index No. 519528/2021, under the caption: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------X 326 21ST STREET LLC & THE FIRST LIBERTY INSURANCE CORPORATION A/S/O JESSICA BLUE, Plaintiff, Index No. 519528/2021 -against- 328 21 ST LLC, NYB BUILDERS INC., and REGAL RECONSTRUCTION CORP, and ZUMBAS BUILDERS INC. Defendants. -----------------------------------------X NYB BUILDERS INC., Third-Party Plaintiff, -against- ZUMBA’S BUILDERS INC. Third-Party Defendant. -----------------------------------------X 328 21 ST LLC, Second Third-Party Plaintiff, -against- {N2147288.1 } 2 2 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 INFO OF ENGINEERING, P.C., and BAYROCK INSURANCE AGENCY. Second Third-Party Defendant. -----------------------------------------X b. as these two actions arise out of the same construction project, involve common questions of law and fact, and involve substantially similar parties; c. For such other and further relief as the Court may deem just, equitable, and proper. PRELIMINARY STATEMENT 3. These two actions arise from the same construction project, located at 328 21st Street, Brooklyn, New York, 11215 (“Construction Project”) that allegedly caused property damage to two adjacent properties located at 326 21st Street, Brooklyn New York 11215 (“Action No. 1”) and 330 21st Street, Brooklyn, New York, 11215 (“Action No. 2”) on August 30, 2018. 4. This motion seeks to consolidate Action No. 1 (Index No. 514069/2019) with Action No. 2 (Index No. 519528/2021) also pending in Supreme Court, Kings County. Consolidation is necessary and appropriate because the two actions involve the same common questions of law and fact, as well as substantially similar parties. FACTS AND PROCEDURAL HISTORY Action No. 1 5. Plaintiff in the instant action seeks recovery for alleged damages to real property located at 326 21st Street, Brooklyn New York 11215 resulting from excavation activities at the adjoining premises located at 328 21st Street, Brooklyn on August 30, 2018. 6. On June 25, 2019, Plaintiff commenced the instant action by Service of Summons and Complaint asserting, among other things, causes of action for negligence, trespass, and nuisance. See, Summons and Complaint, attached as Exhibit “A”. {N2147288.1 } 3 3 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 7. On October 2, 2019, Regal Construction Corp (hereinafter “Regal”) filed a motion to dismiss in lieu of filing an answer to plaintiff’s complaint. This motion was resolved by Court Order granting dismissal of plaintiff’s causes of action for nuisance and trespass against all defendants. A Copy of the Court’s Order is annexed as Exhibit “B”. 8. On November 1, 2019, NYB joined issue by service of an Answer with Cross-Claims. Thereafter, on November 5, 2019, Plaintiff filed a Supplemental Summons and Amended Complaint asserting direct claims against Zumba’s. On November 19, 2019, NYB filed an Answer with Cross-Claims to Plaintiff’s Amended Complaint. Copies of the pleadings are annexed as Exhibit “C”. 9. On November 4, 2019, NYB commenced a third-party action against Zumba Builder’s Inc (hereinafter “Zumbas”) by service of a third-party summons and complaint. A copy of NYB’s Third-Party Summons and Complaint is annexed as Exhibit “D”. 10. On November 20, 2020, Zumba’s joined issue by service of Answer with Cross-Claims to Plaintiff’s Amended Complaint, as well as an Answer to NYB’s Third-Party Complaint. Copies of Zumba’s Answers are annexed as Exhibit “E”. 11. On December 3, 2020, 328 21st Street filed a Second Third-Party Complaint against Info of Engineering, P.C. and Bayrock Insurance Agency. Copies of 328 21 st Street’s Second Third-Party Complaint and Amended Second Third-Party Complaint dated February 24, 2021 are annexed as Exhibit “F”. 12. On April 2, 2021 and April 16, 2021, respectively, Bayrock Insurance Agency and Info of Engineering, P.C. joined issue by service of an Answer to 328 21st Street’s Second Third-Party Amended Complaint. Copies of these pleadings are annexed as Exhibit “G”. {N2147288.1 } 4 4 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 Action No. 2 13. The second action captioned, The First Liberty Insurance Corporation A/S/O Jessica Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction Corp., and Zumba Builders, pending in Supreme Court, Kings County, Index No. 519528/2021, seeks recovery for alleged property damages to 330 21st Street, the same street as above, as a result of excavation activities occurring on August 30, 2018 at the adjoining premises located at 328 21st Street, Brooklyn New York. See, Summons and Complaint, attached as Exhibit “H”. 14. On August 2, 2021, Plaintiff commenced Action No. 2 by filing of Summons and Complaint asserting, among other things, causes of action for negligence, trespass, and nuisance. See, Exhibit “H”. 15. Upon information and belief, Plaintiff is the owner of a residential property located at 330 21st Street, Brooklyn, New York. Plaintiff’s property adjoins a property located at 328 21st Street. Plaintiff alleges property damages as a result of excavation activities, which occurred on or about August 30, 2018 at 328 21st Street. See, Exhibit “H”. 16. Plaintiff alleges that it sustained damages attributable to, among other things, failure to protect its property during construction work at 328 21st Street, failure to take appropriate efforts to underpin, shore or reinforce the existing foundation of plaintiff’s property in preparation for construction, improper excavation causing damage to the subject premises, including the rear yard. See, Exhibit “H”. 17. On January 21, 2022, Regal joined issue by service of Answer with Cross- Claims. A Copy of Regal’s Answer is annexed as Exhibit “I”. 18. On May 17, 2022, NYB moved to consolidate these two Actions as they arise out of the same construction project, involve common questions of law and fact, and involve {N2147288.1 } 5 5 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 substantially similar parties and to dismiss Plaintiff’s cause of action for trespass and nuisance. A copy of NYB’s Partial Motion to Dismiss and Motion to Consolidate is annexed as Exhibit “J”. 19. This motion to consolidate is being made returnable on the same date as the motion to consolidate filed in Action No. 2. 20. The caption of Action No. 2 is: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -------------------------------------------x THE FIRST LIBERTY INSURANCE CORPORATION A/S/O JESSICA BLUE, Index No. Plaintiff, 519528/2021 -against- 328 21 ST LLC, NYB BUILDERS INC, REGAL RECONSTRUCTION CORP. and ZUMBAS BUILDERS INC., Defendants. -------------------------------------------x ARGUMENT POINT I ACTION NO. 1 AND ACTION NO. 2 SHOULD BE CONSOLIDATED BECAUSE THE ACTIONS ARISE OUT OF THE SAME EXACT INCIDENT 21. The above captioned actions should be consolidated for the purposes of joint pre-trial discovery and trial because each involves common questions of law and fact. Both actions allege damages stemming from the excavation of the building located at 328 21st Street occurring on August 30, 2018. See, Exhibit A & Exhibit H. {N2147288.1 } 6 6 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 22. CPLR § 602(a) states in relevant part: Where actions involving a common question of law or fact are pending before court, the court, upon motion, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. 23. Under § CPLR 602(a), the standard for uniting separate actions is the same, regardless of whether the court orders consolidation or joint trial. Consolidation is warranted where actions involve common questions of law or fact. See, CPLR § 602; Atherton v. 21 East 92nd St. Corp., 149 A.D.2d 354 (1st Dep’t 1989); Nikolaidis v. Makita Corp., et al., 242 A.D.2d 322 (2d Dep’t. 1997) (granting motion to consolidate where both actions shared common issues of law and fact and defendant would not suffer prejudice to a substantial right.); GAM Prop. Corp. v. Sorrento Lactalis, Inc., 41 A.D.3d 645 (2d Dep’t 2007). The test is usually met if evidence that would be relevant and admissible in one action would also be admissible in the other. Maigur v. Saratogian, Inc., 1975, 47 A.D.2d 982, 983, 367 N.Y.S.2d 114, 116 (3d Dep’t). 24. In Action No. 1, plaintiff alleges damages to 326 21st Street property resulting from excavation activities which occurred on August 30, 2018 at the adjacent 328 21st Street property. See, Exhibit A. 25. In Action No. 2, plaintiff alleges damages to 330 21st Street property resulting from excavation activities which occurred on August 30, 2018 at the adjacent 328 21st Street property. See, Exhibit H. 26. Both actions allegedly arise out of construction activities at the same 328 21st Street premises. The focus of each action is to recover damages allegedly caused as a result of excavation at that property. {N2147288.1 } 7 7 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 27. Discovery in the two actions would be performed in an economic and consistent manner if they are consolidated, and courts favor consolidation in the name of judicial economy and efficiency. 28. Furthermore, that the two actions may be in different procedural stages, is not prejudicial to plaintiff. Any potential prejudice can be avoided by affording plaintiff in the later filed action the opportunity to complete discovery on an expedited basis. See, Progressive, 782 N.Y.S.2d at 22; Fischer 40th & 3rd Co. v. Welsbach Elec. Corp., 699 N.Y.S.2d 21, 23 (1st Dep’t 1999). Alternatively, the Court has discretion to make appropriate orders requiring additional disclosures to prevent any injustice. See, Morell v. Basa, 752 N.Y.S.2d 299, 300 (1st Dep’t. 2002). 29. Indeed, Action No. 1 has not yet been placed on the trial calendar and discovery is still ongoing. Cf. Goldman v. Rosen, 789 N.Y.S.2d 879 (1st Dep’t. 2005) (motion court properly denied consolidation motion where pending Civil Court proceeding had already been placed on trial calendar); Abrams v. Port Auth. Trans-Hudson Corp., 766 N.Y.S.2d 429, 430 (1st Dep’t. 2003) (motion court denied consolidation where Civil Court action sought to be consolidated was placed on the trial calendar and Supreme Court action was in early discovery phase). 30. In Action No. 1, proper discovery has been exchanged and only the deposition of the plaintiff has been conducted. 31. In Action No. 2, no paper discovery or depositions have taken place. 32. That plaintiff in Action No. 2 delayed in filing the complaint should not be cause to prevent defendants from evaluating all evidence to mount a complete and full defense, or requiring defendants to produce individuals for testimony in two separate actions, allegedly stemming from the same incident. {N2147288.1 } 8 8 of 9 FILED: KINGS COUNTY CLERK 05/19/2022 10:57 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 164 RECEIVED NYSCEF: 05/19/2022 33. Because discovery in the related Actions will overlap considerably, it would be prejudicial to all defendants if these two actions are not consolidated for purpose of discovery as each party would be required to produce an individual for deposition two separate times regarding the same set of underlying facts. The two actions arise out of the same construction project and require deposition testimony from the same parties. 34. It is respectfully submitted that in the interests of justice, that the instant Motion should be granted in its entirety and that Action No. 1 and Action No. 2, be consolidated for purpose of discovery and trial. WHEREFORE, Defendant NYB respectfully requests this Court grants an Order a. Pursuant to CPLR § 602(a), consolidating for joint discovery and trial the action captioned 326 21st Street LLC v. 328 21st St LLC, NYB Builders Inc., and Regal Construction Corp., pending in the Supreme Court, Kings County, Index No. 514069/2019 and the action captioned The First Liberty Insurance Corporation A/S/O Jessica Blue v. 328 21st St LLC, NYB Builders Inc., Regal Construction Corp., and Zumba Builders, pending in Supreme Court, Kings County, Index No. 519528/2021, as these two actions arise out of the same construction project, involve common questions of law and fact, and involve substantially similar parties; and b. For such other and further relief as the Court may deem just, equitable, and proper. Dated: New York, New York April 19, 2022 LONDON FISCHER LLP /s/ Cory A. Simmons By: ______________________________ Cory A. Simmons Attorneys for Defendant NYB Builders Inc. 59 Maiden Lane New York, New York 10038 (212) 972-1000 {N2147288.1 } 9 9 of 9