Preview
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
-----------------------------------------X
326 21ST STREET LLC,
Plaintiff, Index No. 514069/2019
-against- REPLYAFFIRMATION
IN FURTHER
328 21 ST LLC, NYB BUILDERS INC., SUPPORT OF
and REGAL RECONSTRUCTION CORP, MOTION TO
and ZUMBAS BUILDERS INC. CONSOLIDATE
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
AUDREE L. MALDONADO, 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.
{N2301527.1 } 1
1 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
2. This affirmation is respectfully submitted in reply to plaintiff 326 21st ST
LLC’s and defendant 328 21st ST LLC’s oppositions to, and in further support of, NYB’s
application to consolidation Actions 1 and 2 pursuant to CPLR §602(a), for joint discovery and
trial.
ARGUMENT
3. In sum, the oppositions maintain that consolidation is inappropriate because
NYB failed to establish common questions of law and fact between the actions. They also maintain
consolidation would be prejudicial as both the litigations are in different stages of litigation and
joining them will result in “substantial delays,” and “repetitive discovery,” that will slow the
resolution of each action.
POINT I
Consolidation is Appropriate as Actions 1 and 2 have
Clear Common Questions of Law and Fact
4. The oppositions assert that consolidation is not appropriate herein because
the “damages” are bound to be different as the 326 21st street and 330 21st properties were affected
differently due to the excavation performed at 328 21st Street on August 30, 2018. However, this
is not the legal standard for consolidation, and NYB does not have to demonstrate that the damages
sustained by both plaintiffs be identical for consolidation to take place.
5. “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
{N2301527.1 } 2
2 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
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). Neither opposition cites to any binding precedent which
indicates that the movant is required to demonstrate that damages will be identical between the
litigations to warrant consolidation.
6. Thus, NYB has established that Actions Nos. 1 and 2 share common
questions of law and fact which warrant consolidation herein. Indeed, the pleadings in both actions
make identical factual allegations that the properties located at 326 and 330 21st Street were
damaged due to excavation activities performed at the adjoining premises located at 328 21st
Street, Brooklyn on August 30, 2018 [Exhibits A & H]. As both litigations arise from the same
excavation, the factual discovery already generated in Action No. 1 will undoubtedly be relevant
in Action No. 2, including the exchange of construction contracts, DOB violations, photographs
of the excavation, witnesses, etc.
7. Similarly, both complaints assert the same causes of action for negligence,
trespass and nuisance1 against common defendants NYB, 328 21st ST LLC, and Regal
Reconstruction Corporation2. All defendants in each action also asserted the same crossclaims
against each other for indemnification and contribution. Thus, the court will consider clear
common question of law between both litigations arising out the same occurrence – the excavation
performed at 328 21st Street on August 30, 2018.
1
While plaintiff 326 21st ST LLC asserted causes of action for trespass and nuisance in its complaint, these causes
of action were dismissed by Judge Wade on December 6, 2019 [Index No.: 514069; NYSCEF Doc. No.55] pursuant
to defendants’ motions to dismiss same. Similarly, defendants also moved to dismiss plaintiff First Liberty’s claims
of trespass and nuisance, which will be considered by the Court along with the instant application for consolidation
[Index No. 519528/2021; NYSCEF Doc. No. 8].
2
While Action No. 2 names Zumabs Builders Inc as a direct defendant, Zumbas is also named a third-party
defendant in Action No. 1.
{N2301527.1 } 3
3 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
8. The opposition also takes issue with sufficiency of plaintiff First Liberty
Corporation A/S/O Jessica Blue (“plaintiff First Liberty”)’s pleading due to its status as the
subrogor for Jessica Blue, owner of 330 21st Street, and also submits a report indicating that
damages at the 330 21st property took place as early as June of 2018. However, to date, plaintiff
First Liberty has not amended its complaint to indicate that its damages arose from an occurrence
other than the August 30, 2018, date. Similarly, none of the defendants have sought to dismiss
plaintiff First Liberty’s complaint for failure to state a cause of action either due to its status as
Jessica Blue’s subrogor or for asserting an incorrect date of accrual. Thus, on the face of the
pleadings currently before the court, both actions arise from the same occurrence – the August 30,
2018, excavation.
9. Therefore, based on the similar factual allegations and legal claims asserted
in actions 1 and 2, the Court should grant NYB’s application for consolidation.
POINT II
Consolidation is Appropriate as the
Opposition Failed to Establish Substantial Prejudice
10. The opposition also fails to establish that consolidation would result in
substantial prejudice. At best, they highlight that the two litigations are in different stages of
discovery and that consolidation would result in delay. However, it is well-settled that this fact
along is insufficient to establish prejudice See, Fischer 40th & 3rd Co. v. Welsbach Elec. Corp., 699
N.Y.S.2d 21, 23 (1st Dept. 1999) (“notwithstanding the possibility of some delay occasioned by
consolidation…outstanding discovery be directed on an expedited better”). 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 Dept. 2002).
{N2301527.1 } 4
4 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
11. In Action No. 1, the final pre-note of issue conference order [NYSCEF Doc.
No.: 180] outlines a plethora of paper discovery to be exchanged between the parties and orders
defendants’ depositions be conducted, all of which are outstanding. Only plaintiff 326 21 st LLC’s
deposition was conducted to date, and this case is not on the trial calendar. In Action No. 2, no
paper discovery or depositions have taken place.
12. Thus, the court should consolidate these actions to ensure efficiency and
avoid duplicative discovery. If these cases are not consolidated, each of the defendants will
undoubtedly need to commence similar third-party actions in Action No. 2 as in Action 1 to ensure
all parties involved with the subject construction project are including in the litigation. The
commencement of additional third-party actions will substantially delay the prosecution of Action
No. 2, and will require each of the defendants to generate duplicative pleadings, and inundate the
court will unnecessary excessive filings.
13. Moreover, failure to consolidate will literally double the number of defense
depositions. Currently, there are a minimum of 6 defense witnesses scheduled for deposition in
Action No.1:
• Deposition of defendant 328 21st LLC -on or before 2/3/23
• Deposition of defendants NYB Builders Inc.- on or before 2/17/23
• Deposition of Regal Reconstruction Corp.-on or before 3/3/23
• Deposition of Zumbas Builders Inc.- on or before 317/23
• Deposition of Info of Engineering, P.C. -on or before 3/31/23
• Deposition of Bayrock Insurance Agency – on before 4/14/23
14. The above depositions will take a minimum of two months to complete.
That is, of course, assuming each witness presents for only a single deposition session. However,
{N2301527.1 } 5
5 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
provided the complexity of the issues herein, it is likely that some defendants will be required to
present more than a single witness. Therefore, it is highly probable that the above deposition
schedule will extend more than two months.
15. Failure to consolidate these matters then, will result in a second time-
consuming party deposition schedule. Indeed, in Action No. 2, the following party deposition will
have to take place:
• The First Liberty Insurance Corporation A/S/O Jessica Blue
• 328 21st LLC
• NYB Builders Inc
• Regal Reconstruction Corp
• Zumbas Builders Inc.
16. A minimum of 5 depositions would need to be held in Action No.2,
approximately 4 of which would be duplicative of those conducted in Action No.1- a number
which is likely to increase due to the commencement of third-party litigations. Thus, should be
matters remain unconsolidated, several defendants will be required to produce their witnesses
twice, significantly increasing the number of overall depositions needed and the months of
discovery to complete them. Additionally, the defendants will all have to produce and exchange
duplicative document productions defending two separate actions. Should the court consolidation,
the parties can revise the above schedule to plaintiff First Liberty to complete discovery more
expeditiously.
17. Most concerning is the potential for inconsistent judicial decisions, as well
as rulings on evidence and substantive issues, should these matters remain separate. For instance,
as both actions arise out of the same construction project and alleged occurrence, any judicial
{N2301527.1 } 6
6 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
findings, decisions, and rulings in Action No.1 would have a collateral estopple effect in Action
No. 2, which could prejudice parties to that litigation.
18. Lastly, it is highlighted that NYB filed the instant motion over 8 months
ago, and just 1 month after filing its answer in Action No. 2. Thus, it cannot be said that NYB has
attempted to delay these litigations when the record confirms it filed its motion as promptly as
possible.
19. It is axiomatic then that the consolidation of Actions Nos. 1 and 2 will
undoubtedly avoid extended procedural delays, reduce litigation expenses for all parties, conserve
the court’s resources, and avoid inconsistent judicial decisions for actions that arise from the same
occurrence.
20. Therefore, it is respectfully submitted that in the interests of justice, that the
court grant the instant motion, 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
{N2301527.1 } 7
7 of 8
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019
NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023
relief as the Court may deem just, equitable, and proper.
Dated: New York, New York
January 17, 2023
LONDON FISCHER LLP
/s/ Audree L. Maldonado
By: ______________________________
Audree L. Maldonado
Attorneys for Defendant
NYB Builders Inc.
59 Maiden Lane
New York, New York 10038
(212) 972-1000
{N2301527.1 } 8
8 of 8
Preview
FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------X 326 21ST STREET LLC, Plaintiff, Index No. 514069/2019 -against- REPLYAFFIRMATION IN FURTHER 328 21 ST LLC, NYB BUILDERS INC., SUPPORT OF and REGAL RECONSTRUCTION CORP, MOTION TO and ZUMBAS BUILDERS INC. CONSOLIDATE 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 AUDREE L. MALDONADO, 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. {N2301527.1 } 1 1 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 2. This affirmation is respectfully submitted in reply to plaintiff 326 21st ST LLC’s and defendant 328 21st ST LLC’s oppositions to, and in further support of, NYB’s application to consolidation Actions 1 and 2 pursuant to CPLR §602(a), for joint discovery and trial. ARGUMENT 3. In sum, the oppositions maintain that consolidation is inappropriate because NYB failed to establish common questions of law and fact between the actions. They also maintain consolidation would be prejudicial as both the litigations are in different stages of litigation and joining them will result in “substantial delays,” and “repetitive discovery,” that will slow the resolution of each action. POINT I Consolidation is Appropriate as Actions 1 and 2 have Clear Common Questions of Law and Fact 4. The oppositions assert that consolidation is not appropriate herein because the “damages” are bound to be different as the 326 21st street and 330 21st properties were affected differently due to the excavation performed at 328 21st Street on August 30, 2018. However, this is not the legal standard for consolidation, and NYB does not have to demonstrate that the damages sustained by both plaintiffs be identical for consolidation to take place. 5. “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 {N2301527.1 } 2 2 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 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). Neither opposition cites to any binding precedent which indicates that the movant is required to demonstrate that damages will be identical between the litigations to warrant consolidation. 6. Thus, NYB has established that Actions Nos. 1 and 2 share common questions of law and fact which warrant consolidation herein. Indeed, the pleadings in both actions make identical factual allegations that the properties located at 326 and 330 21st Street were damaged due to excavation activities performed at the adjoining premises located at 328 21st Street, Brooklyn on August 30, 2018 [Exhibits A & H]. As both litigations arise from the same excavation, the factual discovery already generated in Action No. 1 will undoubtedly be relevant in Action No. 2, including the exchange of construction contracts, DOB violations, photographs of the excavation, witnesses, etc. 7. Similarly, both complaints assert the same causes of action for negligence, trespass and nuisance1 against common defendants NYB, 328 21st ST LLC, and Regal Reconstruction Corporation2. All defendants in each action also asserted the same crossclaims against each other for indemnification and contribution. Thus, the court will consider clear common question of law between both litigations arising out the same occurrence – the excavation performed at 328 21st Street on August 30, 2018. 1 While plaintiff 326 21st ST LLC asserted causes of action for trespass and nuisance in its complaint, these causes of action were dismissed by Judge Wade on December 6, 2019 [Index No.: 514069; NYSCEF Doc. No.55] pursuant to defendants’ motions to dismiss same. Similarly, defendants also moved to dismiss plaintiff First Liberty’s claims of trespass and nuisance, which will be considered by the Court along with the instant application for consolidation [Index No. 519528/2021; NYSCEF Doc. No. 8]. 2 While Action No. 2 names Zumabs Builders Inc as a direct defendant, Zumbas is also named a third-party defendant in Action No. 1. {N2301527.1 } 3 3 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 8. The opposition also takes issue with sufficiency of plaintiff First Liberty Corporation A/S/O Jessica Blue (“plaintiff First Liberty”)’s pleading due to its status as the subrogor for Jessica Blue, owner of 330 21st Street, and also submits a report indicating that damages at the 330 21st property took place as early as June of 2018. However, to date, plaintiff First Liberty has not amended its complaint to indicate that its damages arose from an occurrence other than the August 30, 2018, date. Similarly, none of the defendants have sought to dismiss plaintiff First Liberty’s complaint for failure to state a cause of action either due to its status as Jessica Blue’s subrogor or for asserting an incorrect date of accrual. Thus, on the face of the pleadings currently before the court, both actions arise from the same occurrence – the August 30, 2018, excavation. 9. Therefore, based on the similar factual allegations and legal claims asserted in actions 1 and 2, the Court should grant NYB’s application for consolidation. POINT II Consolidation is Appropriate as the Opposition Failed to Establish Substantial Prejudice 10. The opposition also fails to establish that consolidation would result in substantial prejudice. At best, they highlight that the two litigations are in different stages of discovery and that consolidation would result in delay. However, it is well-settled that this fact along is insufficient to establish prejudice See, Fischer 40th & 3rd Co. v. Welsbach Elec. Corp., 699 N.Y.S.2d 21, 23 (1st Dept. 1999) (“notwithstanding the possibility of some delay occasioned by consolidation…outstanding discovery be directed on an expedited better”). 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 Dept. 2002). {N2301527.1 } 4 4 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 11. In Action No. 1, the final pre-note of issue conference order [NYSCEF Doc. No.: 180] outlines a plethora of paper discovery to be exchanged between the parties and orders defendants’ depositions be conducted, all of which are outstanding. Only plaintiff 326 21 st LLC’s deposition was conducted to date, and this case is not on the trial calendar. In Action No. 2, no paper discovery or depositions have taken place. 12. Thus, the court should consolidate these actions to ensure efficiency and avoid duplicative discovery. If these cases are not consolidated, each of the defendants will undoubtedly need to commence similar third-party actions in Action No. 2 as in Action 1 to ensure all parties involved with the subject construction project are including in the litigation. The commencement of additional third-party actions will substantially delay the prosecution of Action No. 2, and will require each of the defendants to generate duplicative pleadings, and inundate the court will unnecessary excessive filings. 13. Moreover, failure to consolidate will literally double the number of defense depositions. Currently, there are a minimum of 6 defense witnesses scheduled for deposition in Action No.1: • Deposition of defendant 328 21st LLC -on or before 2/3/23 • Deposition of defendants NYB Builders Inc.- on or before 2/17/23 • Deposition of Regal Reconstruction Corp.-on or before 3/3/23 • Deposition of Zumbas Builders Inc.- on or before 317/23 • Deposition of Info of Engineering, P.C. -on or before 3/31/23 • Deposition of Bayrock Insurance Agency – on before 4/14/23 14. The above depositions will take a minimum of two months to complete. That is, of course, assuming each witness presents for only a single deposition session. However, {N2301527.1 } 5 5 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 provided the complexity of the issues herein, it is likely that some defendants will be required to present more than a single witness. Therefore, it is highly probable that the above deposition schedule will extend more than two months. 15. Failure to consolidate these matters then, will result in a second time- consuming party deposition schedule. Indeed, in Action No. 2, the following party deposition will have to take place: • The First Liberty Insurance Corporation A/S/O Jessica Blue • 328 21st LLC • NYB Builders Inc • Regal Reconstruction Corp • Zumbas Builders Inc. 16. A minimum of 5 depositions would need to be held in Action No.2, approximately 4 of which would be duplicative of those conducted in Action No.1- a number which is likely to increase due to the commencement of third-party litigations. Thus, should be matters remain unconsolidated, several defendants will be required to produce their witnesses twice, significantly increasing the number of overall depositions needed and the months of discovery to complete them. Additionally, the defendants will all have to produce and exchange duplicative document productions defending two separate actions. Should the court consolidation, the parties can revise the above schedule to plaintiff First Liberty to complete discovery more expeditiously. 17. Most concerning is the potential for inconsistent judicial decisions, as well as rulings on evidence and substantive issues, should these matters remain separate. For instance, as both actions arise out of the same construction project and alleged occurrence, any judicial {N2301527.1 } 6 6 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 findings, decisions, and rulings in Action No.1 would have a collateral estopple effect in Action No. 2, which could prejudice parties to that litigation. 18. Lastly, it is highlighted that NYB filed the instant motion over 8 months ago, and just 1 month after filing its answer in Action No. 2. Thus, it cannot be said that NYB has attempted to delay these litigations when the record confirms it filed its motion as promptly as possible. 19. It is axiomatic then that the consolidation of Actions Nos. 1 and 2 will undoubtedly avoid extended procedural delays, reduce litigation expenses for all parties, conserve the court’s resources, and avoid inconsistent judicial decisions for actions that arise from the same occurrence. 20. Therefore, it is respectfully submitted that in the interests of justice, that the court grant the instant motion, 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 {N2301527.1 } 7 7 of 8 FILED: KINGS COUNTY CLERK 01/17/2023 11:31 AM INDEX NO. 514069/2019 NYSCEF DOC. NO. 226 RECEIVED NYSCEF: 01/17/2023 relief as the Court may deem just, equitable, and proper. Dated: New York, New York January 17, 2023 LONDON FISCHER LLP /s/ Audree L. Maldonado By: ______________________________ Audree L. Maldonado Attorneys for Defendant NYB Builders Inc. 59 Maiden Lane New York, New York 10038 (212) 972-1000 {N2301527.1 } 8 8 of 8