Preview
FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RICHARD WELLMAN,
Plaintiff,
AFFIRMATION IN SUPPORT
-against-
Index No.: 159571/16
THE CITY OF NEW YORK,
Defendant.
THOMAS P. MARKOVITS, an attorney duly admitted to practice in the Courts, of this
State, affirms the following under penalty of perjury:
I am a member of the firm of MIRMAN, MARKOVITS & LANDAU, P.C., attorneys
for Plaintiff RICHARD WELLMAN in the above-entitled action and as such, am fully familiar
with the facts and circumstances hereinafter set forth.
I submit this affirmation in support of the plaintiff's instant motion for an Order pursuant
to CPLR Section 602 consolidating a second commenced action under index number I57582/18
(which added the property owners as defendants) into the above-entitled action under 15957I/16
and that the actions as consolidated bear the 2016 index number.
This action arises out of a trip and accident that occurred on or about January 12, 2016
50th
on the sidewalk and curb at the crosswalk of the southwest corner of West Street and
Broadway in New York County. At that time, the plaintiff Richard Wellman was caused to trip
and fall and sustain serious personal injuries including a broken left ankle due to the negligence
of the defendants in maintaining a dangerous and defective sidewalk, curb and crosswalk.
A 50h municipal hearing was held, thereafter, the action was initially commenced
against the City of New York only by serving and filing a summon and complaint on or about
November 14, 2016 under index number 159571/16, a copy of which is annexed hereto as
Exhibit '1". Issue was joined by the service of an answer by the City of New York on or about
November 29, 2016, annexed hereto as Exhibit "2". A bill of particulars was served on the City
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019
in the ñrst action, a preliminary conference was held and discovery ensued. The deposition of
the plaintiff was held on August 9, 2018.
Following the deposition, itwas learned that private property owners owned, maintained
and leased the subject location in question. As such, plaintiff commenced a second action
50d'
against the defendants 210 West Street, LLC., 1627 Broadway, LLC and Duane Reade, Inc.
by filing an additional summons and complaint under index number 157582/18, a copy of which
is annexed hereto as Exhibit "3". Issue was thereafter joined by all defendants in the second
action (Exhibit "4").
Accordingly, at this time we have presently two actions, the above action against the
City only under 159571/16 and the second action adding the additional defendants under
157582/18 and as such, we move at this tirne to consolidate both these actions under the 2016
index number.
It iswell settled that the Court may order actions involving a common law question of
law or fact pending before itupon a motion to avoid unnecessary delay. CPLR Section 602(a).
Where common questions of law or fact exist, a motion to consolidate should be granted, absent
a showing of prejudice to a substantial right by the party opposing the motion. Grvnberg v. BP
(13'
Exploration Operating Co.. 127 A.D.3d 553, 7 N.Y.S.3d 125 Dept. 2015). The First
Department holds that consolidation is proper where multiple actions arise from the same
(1"
accident. Ali v. Effron, 106 A.D.3d 560, 967 N.Y.S.2d 11 Dept. 2013), citing Velasquez v.
(1"
C.F.T., Inc.,240 A.D.2d 178, 179, 657 N.Y.S.2d 707, 709 Dept. 1997).
It isrespectfully submitted that since both actions involve the same parties, the same
transactions and the same occurrences, the remedy here is to consolidate both actions as
consolidation will serve the purposes of allparties hereby aligning all parties in the same suit
and will obviate the need for duplicate trials and discovery herein and no party will incur
prejudice as a result of the consolidation. The new caption will then read as follows:
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------------------------X
RICHARD WELLMAN,
Plaintiff,
-against- Index No.: 159571/16
50™
THE CITY OF NEW YORK, 210 WEST STREET
LLC, 1627 BROADWAY, LLC and DUANE READE,
IKC.,
Defendants.
---------------------------------------------------------------------X
WHEREFORE, based upon the foregoing, itis respectfully requested that the motion to
consolidate be granted in all respects and granting such other and further relief as may b
and proper herein.
DATED: New York, New York
April 15, 2019 THO S P. M OVITS, .
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019
AFFIDAVIT OF SERVICE BY MAIL
STATE OF NEW YORK
COUNTY OF NEW YORK
MARIO VAZQUEZ, being duly sworn, deposes and says:
Deponent is not a party to the action, is over 18 years of age and resides at Jersey City,
New Jersey. That on April 15, 2019, Deponent served the within NOTICE OF MOTION AND
AFFIRMATION IN SUPPORT upon:
Zachary W. Carter, Corp. Counsel
4th
100 Church Street, FlOOr
New York, New York 10007
(212) 356-2725
Foran, Glennon, Palandech, Ponzi & Rudloff, P.C.
54th
40 Wall Street,
New York, New York 10005
(212) 257-7100
Gruvman, Giordano & Glaws, LLP
61 Broadway, Suite 2235
New York, New York 10006
(212) 269-2353
the address(es) designated by said attorneys for that purpose by depositing a true copy of same
enclosed in a post paid addressed in - a post office - official under
properly wrapper, depository
the exclusive care and custody of the United States Postal Service within New York State.
ICIARIO VAZ
SWORN TO BEFORE ME
April 15, 2019 0 T
0F
Q NGy
Y0M
NOTARY PUBLIC
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NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019
INDEX NO.: 159571/16 CALENDAR NO.:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
RICHARD WELLMAN,
Plaintiff,
-against-
THE CITY OF NEW YORK,
Defendants.
NOTICE OF MOTION AND AFFIRMATION IN SUPPORT
MIRMAN MARKOVITS & LANDAU, P.C.
- 6th
291 Broadway FlOOT
New York, New York 10007
Tel. No. (212) 227-4000
5 of 5
Preview
FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RICHARD WELLMAN, Plaintiff, AFFIRMATION IN SUPPORT -against- Index No.: 159571/16 THE CITY OF NEW YORK, Defendant. THOMAS P. MARKOVITS, an attorney duly admitted to practice in the Courts, of this State, affirms the following under penalty of perjury: I am a member of the firm of MIRMAN, MARKOVITS & LANDAU, P.C., attorneys for Plaintiff RICHARD WELLMAN in the above-entitled action and as such, am fully familiar with the facts and circumstances hereinafter set forth. I submit this affirmation in support of the plaintiff's instant motion for an Order pursuant to CPLR Section 602 consolidating a second commenced action under index number I57582/18 (which added the property owners as defendants) into the above-entitled action under 15957I/16 and that the actions as consolidated bear the 2016 index number. This action arises out of a trip and accident that occurred on or about January 12, 2016 50th on the sidewalk and curb at the crosswalk of the southwest corner of West Street and Broadway in New York County. At that time, the plaintiff Richard Wellman was caused to trip and fall and sustain serious personal injuries including a broken left ankle due to the negligence of the defendants in maintaining a dangerous and defective sidewalk, curb and crosswalk. A 50h municipal hearing was held, thereafter, the action was initially commenced against the City of New York only by serving and filing a summon and complaint on or about November 14, 2016 under index number 159571/16, a copy of which is annexed hereto as Exhibit '1". Issue was joined by the service of an answer by the City of New York on or about November 29, 2016, annexed hereto as Exhibit "2". A bill of particulars was served on the City 1 of 5 FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019 in the ñrst action, a preliminary conference was held and discovery ensued. The deposition of the plaintiff was held on August 9, 2018. Following the deposition, itwas learned that private property owners owned, maintained and leased the subject location in question. As such, plaintiff commenced a second action 50d' against the defendants 210 West Street, LLC., 1627 Broadway, LLC and Duane Reade, Inc. by filing an additional summons and complaint under index number 157582/18, a copy of which is annexed hereto as Exhibit "3". Issue was thereafter joined by all defendants in the second action (Exhibit "4"). Accordingly, at this time we have presently two actions, the above action against the City only under 159571/16 and the second action adding the additional defendants under 157582/18 and as such, we move at this tirne to consolidate both these actions under the 2016 index number. It iswell settled that the Court may order actions involving a common law question of law or fact pending before itupon a motion to avoid unnecessary delay. CPLR Section 602(a). Where common questions of law or fact exist, a motion to consolidate should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion. Grvnberg v. BP (13' Exploration Operating Co.. 127 A.D.3d 553, 7 N.Y.S.3d 125 Dept. 2015). The First Department holds that consolidation is proper where multiple actions arise from the same (1" accident. Ali v. Effron, 106 A.D.3d 560, 967 N.Y.S.2d 11 Dept. 2013), citing Velasquez v. (1" C.F.T., Inc.,240 A.D.2d 178, 179, 657 N.Y.S.2d 707, 709 Dept. 1997). It isrespectfully submitted that since both actions involve the same parties, the same transactions and the same occurrences, the remedy here is to consolidate both actions as consolidation will serve the purposes of allparties hereby aligning all parties in the same suit and will obviate the need for duplicate trials and discovery herein and no party will incur prejudice as a result of the consolidation. The new caption will then read as follows: 2 of 5 FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------------------------X RICHARD WELLMAN, Plaintiff, -against- Index No.: 159571/16 50™ THE CITY OF NEW YORK, 210 WEST STREET LLC, 1627 BROADWAY, LLC and DUANE READE, IKC., Defendants. ---------------------------------------------------------------------X WHEREFORE, based upon the foregoing, itis respectfully requested that the motion to consolidate be granted in all respects and granting such other and further relief as may b and proper herein. DATED: New York, New York April 15, 2019 THO S P. M OVITS, . 3 of 5 FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019 AFFIDAVIT OF SERVICE BY MAIL STATE OF NEW YORK COUNTY OF NEW YORK MARIO VAZQUEZ, being duly sworn, deposes and says: Deponent is not a party to the action, is over 18 years of age and resides at Jersey City, New Jersey. That on April 15, 2019, Deponent served the within NOTICE OF MOTION AND AFFIRMATION IN SUPPORT upon: Zachary W. Carter, Corp. Counsel 4th 100 Church Street, FlOOr New York, New York 10007 (212) 356-2725 Foran, Glennon, Palandech, Ponzi & Rudloff, P.C. 54th 40 Wall Street, New York, New York 10005 (212) 257-7100 Gruvman, Giordano & Glaws, LLP 61 Broadway, Suite 2235 New York, New York 10006 (212) 269-2353 the address(es) designated by said attorneys for that purpose by depositing a true copy of same enclosed in a post paid addressed in - a post office - official under properly wrapper, depository the exclusive care and custody of the United States Postal Service within New York State. ICIARIO VAZ SWORN TO BEFORE ME April 15, 2019 0 T 0F Q NGy Y0M NOTARY PUBLIC 4 of 5 FILED: NEW YORK COUNTY CLERK 05/02/2019 04:02 PM INDEX NO. 159571/2016 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 05/02/2019 INDEX NO.: 159571/16 CALENDAR NO.: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK RICHARD WELLMAN, Plaintiff, -against- THE CITY OF NEW YORK, Defendants. NOTICE OF MOTION AND AFFIRMATION IN SUPPORT MIRMAN MARKOVITS & LANDAU, P.C. - 6th 291 Broadway FlOOT New York, New York 10007 Tel. No. (212) 227-4000 5 of 5