Motion for Consolidation in Scott Herkert, Vito Fossella in his capacity as Staten Island Borough President, Nicole Malliotakis in her capacity as a member of U.S. Congress, Andrew Lanza in his capacity as a New York State Representative, Michael Tannousis, Michael Riley, Sam Pirozzolo, Joe Borelli, David Carr v. The State Of New York, The City Of New York, Kathy Hochul, Eric Adams, Molly Wasow Park| Trellis.Law

On August 24, 2023 a Motion-Secondary was filed involving a dispute between Andrew Lanza In His Capacity As A New York State Representative, David Carr, Joe Borelli, Michael Riley, Michael Tannousis, Nicole Malliotakis In Her Capacity As A Member Of U.S. Congress, Sam Pirozzolo, Scott Herkert, Vito Fossella In His Capacity As Staten Island Borough President, and Eric Adams, Kathy Hochul, Molly Wasow Park, The City Of New York, The State Of New York, for Special Proceedings - CPLR Article 78 in the District Court of Richmond County.

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FILED: RICHMOND COUNTY CLERK 11/02/2023 09:11 PM INDEX NO. 85174/2023
NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 11/02/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND

SCOTT HERKERT, VITO FOSSELLA in his
capacity as Staten Island Borough President, NI-
COLE MALLIOTAKIS in her capacity as a Index No. 85174/2023
member of U.S. Congress, ANDREW LANZA
in his capacity as a New York State Senator, MI- (Ozzi, J.)
CHAEL TANNOUSIS in his capacity as a New
York State Representative, MICHAEL REILLY
in his capacity as a New York State Representa-
tive, SAM PIROZZOLO in his capacity as a
New York State Representative, JOE BORELLI
in his capacity as a member of City Council, and
DAVID CARR in his capacity as a member of
City Council,

Petitioners/Plaintiffs

THE STATE OF NEW YORK, THE CITY OF
NEW YORK, KATHY HOCHUL in her capac-
ity as Governor of the State of New York, ERIC
ADAMS in his capacity as Mayor of the City of
New York, MOLLY WASOW PARK in her ca-
pacity as the Commissioner of the New York
City Department of Social Services,

Respondents/Defendants

STATE RESPONDENTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PETITIONERS’ MOTION TO CONSOLIDATE

Date: November 2, 2023 Faith E. Gay
Temidayo Aganga-Williams
Claire O’Brien
SELENDY GAY ELSBERG PLLC
1290 Avenue of the Americas
New York, NY 10104
Tel: 212-390-9000
fgay@selendygay.com
tagangawilliams@selendygay.com
cobrien@selendygay.com

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Attorneys for the State of New York and Kathy
Hochul in her capacity as Governor of the
State of New York

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TABLE OF CONTENTS

Pages

PRELIMINARY STATEMENT .....................................................................................................1

BACKGROUND .............................................................................................................................1

ARGUMENT ...................................................................................................................................5

I. THE COURT SHOULD DENY THE WILLIAMS PETITIONERS’ MOTION TO
CONSOLIDATE..................................................................................................................5

1. Consolidation Should Be Denied Because Herkert Faces Two
Pending And Meritorious Motions To Dismiss ...........................................6

2. Consolidation Should be Denied Because the Questions of Fact and
Law are Distinct ...........................................................................................7

3. Consolidation Should be Denied Because it Would Impermissibly
Delay Resolution of the Herkert Action ....................................................10

CONCLUSION ..............................................................................................................................11

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TABLE OF AUTHORITIES

Page(s)

Cases

Abrams v. Port Authority Trans-Hudson Corp.,
1 A.D.3d 118 (1st Dep’t 2003) ............................................................................................5, 10

Ahmed v. C.D. Kobsons, Inc.,
73 A.D.3d 440 (1st Dep’t 2010) ..............................................................................................10

Am. Sec. Ins. Co. v. Church of God of St. Albans,
2014 WL 302286 (Sup. Ct., Queens County Jan. 24, 2014)......................................................8

Bank of America, N.A. v. Airport Auto Group, Inc.,
2008 WL 4212445 (Sup. Ct., Nassau County Sept. 8, 2008) ................................................8, 9

Benson v. Fischer,
2019 WL 332434 (D. Minn. Jan. 25, 2019) ...............................................................................6

Cromwell v. CRP 482 Riverdale Ave., LLC,
163 A.D.3d 626 (2d Dep’t 2018) ...........................................................................................5, 7

Ekpe v. City of New York,
2021 WL 5999204 (S.D.N.Y. Dec. 20, 2021) ...........................................................................6

Evans v. Int’l Paper Co.,
2011 WL 2559791 (W.D. La. June 28, 2011) ...........................................................................7

Fuerst v. Fuerst,
957 N.Y.S.2d 635 (Sup. Ct., Nassau County 2010)...................................................................6

Gouldsbury v. Dan’s Supreme Supermarket, Inc.,
138 A.D.2d 675 (2d Dep’t 1988) .........................................................................................8, 10

Hearst Corp. v. Clyne,
50 N.Y.2d 707 (1980) ................................................................................................................7

HSBC Bank USA, N.A. v. Francis,
214 A.D.3d 58 (2d Dep’t 2023) .........................................................................................5, 6, 7

Jaime Williams, et al. v. State of New York, et al.,
Index No. 85190/2023 ..................................................................................................... passim

KGK Jewelry LLC v. ESDNetwork,
2014 WL 7333291 (S.D.N.Y. Dec. 24, 2014) .........................................................................10

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Kukielka v. Santana,
191 A.D.3d 532 (1st Dep’t 2021) ..............................................................................................8

MBIA Ins. Corp. v. Countrywide Home Loans, Inc.,
2011 WL 6446121 (Sup. Ct. New York County Oct. 31, 2011) .............................................10

Northside Tower Realty, LLC v. Scorcia and Diana Assocs., Inc,
2008 WL 1693551 (Sup. Ct., New York County Mar. 3, 2008) ...............................................9

Osman v. Weyker,
2016 WL 10402791 (D. Minn. Nov. 21, 2016) .........................................................................6

Pac. Recovery Solutions v. Cigna Behav. Health, Inc.,
2021 WL 577394 (N.D. Cal. Feb. 16, 2021) ...........................................................................10

In re Repetitive Stress Inj. Litig.,
11 F.3d 368 (2d Cir. 1993).........................................................................................................9

In re Seventh Judicial Dist. Asbestos Litig.,
191 Misc.2d 625 (Sup. Ct., Monroe County 2002) ...................................................................6

Spring Commc’ns, L.P. v. Cox Commc’ns, Inc.,
2012 WL 1825222 (D. Kan. May 18, 2012) ..............................................................................6

State of New York Workers’ Comp. Bd. v. Hamilton, Wharton Grp., Inc,
2013 WL 4799159 (Sup. Ct., Albany County Aug. 30, 2013) ................................................10

Thompson v. City of St. Peters,
2016 WL 1625373 (E.D. Mo. Apr. 21, 2016)............................................................................6

Statutes

6 N.Y.C.R.R. § 617.1 et seq.............................................................................................................4

16 U.S.C.A. § 460cc et seq. .............................................................................................................4

42 U.S.C. § 4321 et seq................................................................................................................3, 4

CPLR 602.................................................................................................................................6, 7, 9

CPLR 3001.......................................................................................................................................5

CPLR 3025.....................................................................................................................................11

CPLR 4511(b) ..................................................................................................................................2

CPLR 7801 et seq ....................................................................................................................2, 5, 7

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Respondents/Defendants State of New York (the “State”) and The Honorable Kathy

Hochul, in her official capacity as Governor of the State of New York (the “Governor”) (together,

the “State Respondents”), respectfully submit this memorandum of law in opposition to Petition-

ers’ Motion to Consolidate.

PRELIMINARY STATEMENT

Respondents are before this Court on an Order to Show Cause, NYSCEF Doc. No. 44, as

to why the above-captioned matter (“Herkert”) should not be consolidated with Jaime Williams,

et al. v. State of New York, et al., Index No. 85190/2023 (“Williams”), which is currently pending

before the Honorable Lizette Colon, J.S.C. Consolidation is not appropriate here.

Herkert involves a now-moot challenge to New York City’s (the “City”) decision to shelter

migrant families and adult single women at a former school located at 57 Cleveland Place in Staten

Island, New York (the “Staten Island Facility”). The City has now closed the Staten Island Facility

and will not reopen it.

Williams involves a challenge to the operation of a separate, emergency shelter for migrants

at Floyd Bennett Field in the Gateway National Recreation Area in Brooklyn, New York and is

currently pending before Justice Colon.

Because Herkert is subject to two pending, meritorious motions to dismiss before this

Court, the legal and factual issues raised in Herkert and Williams are distinct, and consolidation

would unduly delay the resolution of Herkert, the Court should deny the Motion to Consolidate.

BACKGROUND

Since the Spring of 2022, more than 100,000 migrants have arrived in the City with many

receiving shelter and care from the City. This significant number of new migrant arrivals is un-

precedented. In response, in October 2022, City Mayor Eric Adams (the “Mayor” and, together

with the City and Commissioner of the City Department of Social Services Molly Wasow Park,

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the “City Respondents”) issued a series of emergency executive orders to help City officials man-

age this challenge, including by permitting the City to create and operate emergency shelter sites.

See NYSCEF Doc. No. 46 (“Williams Am. Pet.”) ¶ 84. 1 In May 2023, the Governor also issued

an emergency executive order, which declared a State Disaster Emergency and authorized State

agencies to assist the City and individuals in responding to the crisis. See Williams Am. Pet. ¶ 83. 2

Since this humanitarian crisis began, the City has opened more than 200 emergency shel-

ters. In Herkert, Petitioners Scott Herkert and various elected officials allege that one of those

sites, the Staten Island Facility, created an unreasonable private nuisance and violated various zon-

ing and public notice statutes. NYSCEF Doc. No. 1 (“Herkert Pet.”) at 2. The Herkert Petitioners

seek relief from the City’s August 22, 2023 decision to shelter migrants at the Staten Island Facil-

ity, which is adjacent to Mr. Herkert’s residence. Id. Herkert, which was brought under Article

78 of the CPLR, is currently pending before this Court. On September 28, 2023, the State Re-

spondents moved to dismiss the Herkert Petition because: (1) the State is not a proper party in an

Article 78 proceeding; (2) the State Respondents did not have any role in the City’s decision to

shelter migrants at the Staten Island Facility and the State Respondents are not involved in the

operation of the Staten Island Facility; and (3) the Herkert Petitioners fail to make any specific

1
State Respondents request that the Court take judicial notice of the orders as they are publicly available government
documents. See CPLR 4511(b). On October 7, 2022, the Mayor issued Emergency Executive Order 224, which is
available at https://www.nyc.gov/office-of-the-mayor/news/224-003/emergency-executive-order-224 (declaring that
a state of emergency exists within the City). On October 7, 2023, the Mayor issued an extension of this order for
another thirty days, which is available at https://www.nyc.gov/office-of-the-mayor/news/504-003/emergency-execu-
tive-order-504. On October, 12, 2022, the Mayor issued Emergency Executive Order 230, which is available at
https://www.nyc.gov/office-of-the-mayor/news/230-003/emergency-executive-order-230 (suspending applicable dis-
trict use regulations that would prevent use of buildings as temporary shelter sites).
2
State Executive Order No. 28 [9 NYCRR 9.28], https://www.governor.ny.gov/executive-order/no-28-declaring-dis-
aster-emergency-state-new-york. The Court should take judicial notice of this order. See supra note 1. On October
23, 2023, the Governor extended the order until October 22, 2023. See Executive Order No. 28.6 [9 NYCRR 9.28.6].
The Williams Petitioners misidentify paragraph 83 of the Amended Petition as paragraph as 76, even though it is
placed between paragraphs 82 and 84. We have corrected the mistake and do so where necessary throughout this
memorandum of law.

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allegation that the State Respondents took any action related to the Staten Island Facility.

NYSCEF Doc. No. 32 (“State’s Mot. To Dismiss”). The State’s Motion to Dismiss is currently

pending before this Court. 3 On or about October 16, 2023, the Staten Island Facility closed, and

it will not reopen; on this basis, the City Respondents have also filed a Motion to Dismiss the case

as moot. 4

Separately, the Williams case concerns a different emergency shelter site at Floyd Bennett

Field, which is part of the Gateway National Recreation Area—a U.S. national recreation area

managed by the National Park Service (“NPS”). See Williams Am. Pet. ¶ 94. On September 15,

2023, Mayor Adams announced that the City entered into a one-year lease (the “Lease”) with NPS

to use Floyd Bennett Field as an emergency shelter site. Williams Am. Pet. ¶ 79; see also Lease. 5

The U.S. Department of the Interior (“DOI”) and NPS have assessed the environmental

and human impacts of the Lease. DOI determined an emergency exists such that federal agencies

may take actions with respect to this federal parkland without first preparing a complete analysis

under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. 6 On September

3
As noted in the State’s Motion to Dismiss, the Court issued a decision in this matter on September 26, 2023, grant-
ing the preliminary injunction as against the City Respondents. See State’s Mot. To Dismiss at 1 n.1. The Court did
not address the pending request for a preliminary injunction as against the State Respondents, and the State Re-
spondents therefore understand that the Court’s decision only applies to the City Respondents. NYSCEF Doc. No.
26 at 1 (“This Decision and Order is issued regarding the primary question before this Court, namely whether a pre-
liminary injunction should be issued enjoining the Respondent City of New York (hereinafter, ‘Respondents’ or ‘the
City’) from using buildings at 57 Cleveland Place in Staten Island (the “facility”) ... . For the reasons expressed be-
low, the Court hereby issues a preliminary injunction enjoining the City … .”). The order is stayed pending appeal.
4
NYSCEF No. 58, City Respondents’ Memorandum of Law in Support of Its Motion to Dismiss as Moot (“City Mot.
to Dismiss”) at 2 (noting that the Staten Island Facility “is permanently closed” and “[t]he City will not reopen a
shelter at the former St. John Villa Academy.”). The Williams Petitioners also concede that the Staten Island Facility
has closed. Williams Am. Pet. ¶¶ 235-237.
5
See Lease, https://www.nps.gov/aboutus/foia/foia-frd.htm. The Court should take judicial notice of the Lease. See
supra note 1.
6
See Decision Memorandum and Environmental Review to Support Emergency Activities for Temporary Housing of
Migrants (the “DOI Environmental Review”), https://www.nps.gov/aboutus/foia/upload/For-PDAS_PMB-signature-
GATE-Alternative-Arrangements-09-11-2023.pdf. The Court should take judicial notice of the DOI Environmental
Review. See supra note 1.

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13, 2023, NPS concluded that the Lease was consistent with federal regulations governing use of

parklands in emergency situations. 7

In a separate Reimbursement Agreement between the City and the State, the Governor

agreed to use State resources to finance the Floyd Bennett Field emergency shelter. Williams Am.

Pet. ¶ 82; Reimbursement Agreement. 8 The State agreed to reimburse the City for management

and oversight costs, monthly rental payments, and the cost of up to 2,000 beds for a year. Reim-

bursement Agreement. §§ 1, 5.

On September 19, 2023, the Williams Petitioners filed a Petition and Order to Show Cause

challenging the use of Floyd Bennett Field as an emergency shelter and the State’s reimbursement

of the project, and later filed an Amended Petition on October 19, 2023. The Williams Petitioners

allege that the use of Floyd Bennett Field as a shelter site violates two federal environmental stat-

utes—the Gateway National Recreation Area’s enabling act, 16 U.S.C.A. § 460cc et seq., and

NEPA. Williams Am. Pet. ¶¶ 94-110, 111-133. The Williams Petitioners also contend that the

plan violates the State Environmental Quality Review Act, 6 N.Y.C.R.R. § 617.1 et seq., local

zoning regulations, and the State Constitution. Williams Am. Pet. ¶¶ 152-163, 186-193, 194-213.

Further, the Williams Petitioners assert that the executive orders upon which the City and State

rely are unconstitutional. Williams Am. Pet. ¶¶ 89, 214-215. Based on these alleged violations of

federal, state, and local law, the Williams Petitioners request an administrative determination under

7
See Floyd Bennett Field Lease Determination Memo (the “NPS Lease Determination Memo”),
https://www.nps.gov/aboutus/foia/upload/FBF_Lease-Determination-Memo_9-13-23-2.pdf. NPS also issued a State-
ment of Findings explaining the emergency situation is being addressed through the DOI emergency procedures at 43
CFR 46.150. See Statement of Findings for Floodplain Management (the “NPS Statement of Findings”),
https://www.nps.gov/aboutus/foia/upload/Statement-of-findings-for-floodplain-management.pdf. The Court should
take judicial notice of the NPS’s Lease Determination Memo and the NPS Statement of Findings. The Court should
take judicial notice of both memos.See supra note 1.
8
See Reimbursement Agreement, https://www.nps.gov/aboutus/foia/foia-frd.htm. The Court should take judicial no-
tice of the Reimbursement Agreement. See supra note 1.

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Article 78 of the CPLR, a declaratory judgment under CPLR 3001, and an accompanying prelim-

inary injunction under CPLR 6301. Williams Am. Pet. ¶¶ 1-7. Williams is currently pending be-

fore Justice Colon with responsive papers due on November 8, 2023, and argument scheduled for

February 6, 2024.

On October 20, 2023, the Williams Petitioners filed the present Motion to Consolidate Wil-

liams with Herkert. NYSCEF Doc. No. 44.

ARGUMENT

I. THE COURT SHOULD DENY THE WILLIAMS PETITIONERS’ MOTION TO
CONSOLIDATE

Consolidation is barred for three independent and sufficient reasons. First, consolidation

is not permitted where, as here, one of the actions faces a pending and apparently meritorious

motion to dismiss. HSBC Bank USA, N.A. v. Francis, 214 A.D.3d 58, 63 (2d Dep’t 2023). Second,

consolidation is not permitted when the actions are based on different legal claims arising from

different sets of facts, which is precisely the case here. See Cromwell v. CRP 482 Riverdale Ave.,

LLC, 163 A.D.3d 626, 627 (2d Dep’t 2018) (“Denial of the motion may be warranted where com-

mon questions of law or fact are lacking” or “where the actions involve dissimilar issues or dis-

parate legal theories.”). And third, consolidation here would substantially prejudice the State Re-

spondents by impermissibly delaying the resolution of the Herkert matter. Abrams v. Port Author-

ity Trans-Hudson Corp., 1 A.D.3d 118, 119 (1st Dep’t 2003) (“Even where there are common

questions of law or fact, consolidation is properly denied if the actions are at markedly different

procedural stages and consolidation would result in undue delay in the resolution of either mat-

ter.”).

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1. Consolidation Should Be Denied Because Herkert Faces Two Pending
And Meritorious Motions To Dismiss

“[A] precondition for merging two or more actions is that each action should itself be via-

ble, meaning that neither is confronted with a pending—and apparently meritorious—motion to

dismiss.” HSBC, 214 A.D.3d at 63. And when “one of the cases to be consolidated is subject to

a meritorious motion to dismiss,” the law is clear: “consolidation should be denied.” Id. at 64. 9

The rationale is obvious: if one matter is dismissed, there is nothing with which the other can be

consolidated. For that reason, consolidation is especially inappropriate when, as here, two seem-

ingly meritorious motions to dismiss are pending.

This recent HSBC holding was one of first impression for the Appellate Division, Second

Department. Id. at 64. HSBC is consistent with prior holdings by federal courts, which have a

consolidation rule that is “the equivalent” of the State’s consolidation rule. See In re Seventh

Judicial Dist. Asbestos Litig., 191 Misc.2d 625, 627 (Sup. Ct., Monroe County 2002) (noting that

Federal Rule of Civil Procedure 42(a) “is the equivalent of CPLR § 602(a)”). Federal courts have

repeatedly “concluded that consolidation is premature when motions to dismiss are pending.” Ben-

son v. Fischer, 2019 WL 332434, at *2 (D. Minn. Jan. 25, 2019); see also Ekpe v. City of New

York, 2021 WL 5999204, at *4 (S.D.N.Y. Dec. 20, 2021) (noting consolidation is inappropriate

due to, inter alia, “pending motions to dismiss” and “divergent procedural postures”); Osman v.

Weyker, 2016 WL 10402791, at *3 (D. Minn. Nov. 21, 2016) (finding motion to consolidate was

premature when motion to dismiss was still pending); Thompson v. City of St. Peters, 2016 WL

1625373, at *2 (E.D. Mo. Apr. 21, 2016) (finding that “judicial efficiency is best served by decid-

ing the pending motions prior to any consolidation”); Spring Commc’ns, L.P. v. Cox Commc’ns,

9
“It is axiomatic that this court is bound by Second Department authority.” Fuerst v. Fuerst, 957 N.Y.S.2d 635, 635
(Table) (Sup. Ct., Nassau County 2010).

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Inc., 2012 WL 1825222, at *1 (D. Kan. May 18, 2012) (same); Evans v. Int’l Paper Co., 2011 WL

2559791, at *6 (W.D. La. June 28, 2011) (same).

This Court now has not one, but two pending Motions to Dismiss before it—one filed by

the State Respondents and another by the City Respondents. The State Respondents argue that the

State cannot be a proper party in an Article 78 proceeding, State’s Mot. to Dismiss at 3, and that

the State Respondents were not involved in opening or operating the Staten Island Facility at issue

in Herkert. Id. at 4-5. These issues are fatal to the Herkert Petitioners’ claims against the State

Respondents, and consolidation does not cure those flaws. “The purpose of consolidation under

CPLR 602(a) is not to provide a party with a procedural end run around a legal defense applicable

to one of the actions.” HSBC, 214 A.D.3d at 64. And then there is the City’s Motion to Dismiss,

which makes plain the mootness of Herkert—the facility that spawned the litigation is closed and

will not reopen. City Mot. to Dismiss at 2 (“The Facility is permanently closed.”). Once a case is

moot, a petitioner may no longer seek relief from a court. See Hearst Corp. v. Clyne, 50 N.Y.2d

707, 713 (1980) (“It is a fundamental principle of our jurisprudence that the power of a court to

declare the law only arises out of, and is limited to, determining the rights of persons which are

actually controverted in a particular case pending before the tribunal. . . This principle . . . forbids

courts to pass on academic, hypothetical, moot, or otherwise abstract questions.”). The Court

should deny the Motion to Consolidate the two actions for this reason alone.

2. Consolidation Should be Denied Because the Questions of Fact and
Law are Distinct

Consolidation is permitted only for actions “involving a common question of law or fact.”

CPLR 602(a). Denial of a motion to consolidate is warranted “where common questions of law

or fact are lacking” and “where the actions involve dissimilar issues or disparate legal theories.”

Cromwell v. CRP 482 Riverdale Ave., LLC, 163 A.D.3d 626, 627 (2d Dep’t 2018). Even where

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“there are some common issues of law and fact shared by” two actions, consolidation is not proper

when the “actions are based on widely disparate legal theories.” Gouldsbury v. Dan’s Supreme

Supermarket, Inc., 138 A.D.2d 675, 675-76 (2d Dep’t 1988). In Williams and Herkert, the Court

confronts fundamentally different facts, issues, and legal theories, making consolidation inappro-

priate.

Bank of America, N.A. v. Airport Auto Group, Inc. is particularly instructive in showing

that consolidation is inappropriate even in cases that appear to be facially related. 2008 WL

4212445, at *2 (Sup. Ct., Nassau County Sept. 8, 2008). In Bank of America, at a high level, the

cases under consideration for consolidation appeared similar: They involved the same plaintiff

suing two companies with common principals, represented by the same counsel. Id. at *1. Further,

both suits turned on contracts with identical terms. Id. But it is the details—not the highest level

of generality—that matter for purposes of a consolidation motion. See id. The court in Bank of

America denied consolidation because, “[w]hile there are certain characteristics common to all of

the transactions [at issue], the fact remains that each was an independent event, with its own unique

factual scenario.” Id. at *2 (emphasis added). Critically, “[w]here evidence with respect to two

actions does not overlap, even where the suits arise from the same series of transactions, motions

for consolidation are generally denied.” Id.; see Am. Sec. Ins. Co. v. Church of God of St. Albans,

2014 WL 302286, at *3 (Sup. Ct., Queens County Jan. 24, 2014) (denying consolidation when the

“issues involved in the two matters arise out of different transactions and different claims by the

respective plaintiffs and require dissimilar proofs”); see also Kukielka v. Santana, 191 A.D.3d 532,

533 (1st Dep’t 2021) (reversing grant of motion to consolidate actions involving the same instance

of property damage to a single apartment when “[t]he two actions involve different issues,” namely

one involved negligence claims against one set of defendants while the other involved breach of

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contract against different defendants); Northside Tower Realty, LLC v. Scorcia and Diana Assocs.,

Inc, 2008 WL 1693551 at *1 (Sup. Ct., New York County Mar. 3, 2008) (denying motion to con-

solidate when “both actions arise out of the same construction project but involve two separate

construction contracts regarding two separate aspects of the construction project”).

There is no question that here, each action arises from an “independent event, with its own

unique factual scenario.” Bank of America, 2008 WL 4212445 at *2. Herkert concerns a single

facility in a former school adjacent to the property of Mr. Herkert, and alleges a private nuisance,

a violation of public notice statutes, and a violation of zoning statutes. Herkert Pet. at ¶¶ 3-5.

Williams, on the other hand, concerns a temporary emergency shelter for migrants at Floyd Bennett

Field and seeks a declaratory judgment on state constitutional issues and, in addition, is centered

on allegations of violations of federal and state environmental statutes. Williams Pet. ¶¶ 94-95,

112, 136-37, 153, 196-97. The core evidence in each case does not overlap because neither the

facts nor the legal claims significantly overlap. These are separate matters that have and should

be litigated separately. 10

To the extent the Williams Petitioners seek to argue that both actions accuse the State Re-

spondents of “arbitrary and capricious” acts, consolidation in such circumstances would drain

CPLR 602 of all meaning. Under such a standard, any two plaintiffs asserting that the State acted

in an arbitrary and capricious manner in any context could consolidate their claims. Simply tying

the cases to the influx of migrants into the City does not create common issues of law and fact any

more than that the events complained of in both petitions occurred in the City. Similarities at such

10
Federal courts, interpreting the equivalent rule of the Federal Rules of Civil Procedure, reach the same conclusion.
See, e.g., In re Repetitive Stress Inj. Litig., 11 F.3d 368, 373 (2d Cir. 1993) (holding consolidating cases was an abuse
of discretion when the “sole common fact” was of “such generality” that it could span numerous unrelated cases).

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a broad level are plainly insufficient in the face of different legal challenges asserted by different

plaintiffs with respect to wholly separate locations. 11

3. Consolidation Should be Denied Because it Would Impermissibly
Delay Resolution of the Herkert Action

A court should not consolidate an action “in its initial stages” with a case already in a

position to be resolved “quickly and efficiently.” Ahmed v. C.D. Kobsons, Inc., 73 A.D.3d 440,

441 (1st Dep’t 2010). “Even where there are common questions of law or fact, consolidation is

properly denied if the actions are at markedly different procedural stages and consolidation would

result in undue delay in the resolution of either matter.” Abrams, 1 A.D.3d at 119; see also Goulds-

bury, 138 A.D.2d at 675-76 (finding consolidation improper where, inter alia, there existed a “dis-

parity between the stages of litigation to which each case has progressed”). Indeed, courts have

frequently found “the prevention of undue delay to be decisive” in denying consolidation. MBIA

Ins. Corp. v. Countrywide Home Loans, Inc., 2011 WL 6446121, at *5 (Sup. Ct. New York County

Oct. 31, 2011); see also State of New York Workers’ Comp. Bd. v. Hamilton, Wharton Grp., Inc,

2013 WL 4799159, at *3 (Sup. Ct., Albany County Aug. 30, 2013) (“[T]he prevention of undue

delay [is] decisive” in denying consolidation even when all cases were in discovery but one was

far ahead in the litigation process). 12

The Herkert matter has significantly progressed and has been the subject of various filings

by the parties, including an Answer by the City Respondents and pending Motions to Dismiss filed

11
The same goes for the fact that the State, the Governor, the City, and the Mayor are named in both actions. They,
like many other government officials and entities, are frequently named as respondents in lawsuits.

12
Similarly, federal courts “have routinely denied consolidation motions where there is a stark difference in the pro-
cedural posture of the actions, finding that judicial economy would not be served by consolidating two actions at
disparate stages of litigation.” KGK Jewelry LLC v. ESDNetwork, 2014 WL 7333291, at *2 (S.D.N.Y. Dec. 24, 2014).
Consolidation in such instances “is likely to produce inconvenience, delay and expense” to the parties. Pac. Recovery
Solutions v. Cigna Behav. Health, Inc., 2021 WL 577394, at *5 (N.D. Cal. Feb. 16, 2021) (denying consolidation).

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by the both the City Respondents and State Respondents. The Court issued a decision on Septem-

ber 26, 2023, granting a request for a preliminary injunction against the City Respondents, which

has been stayed pending appeal. NYSCEF Doc. No. 26. Thereafter, the City Respondents filed

the above-referenced pending Motion to Dismiss, arguing that the case is moot because the facility

being challenged is permanently closed. The Herkert matter is near its conclusion.

In marked contrast, the Williams litigation remains in its earliest stages before Justice Co-

lon, with responses to the October 19 Amended Petition not due until November 8. See CPLR

3025. One matter has reached its resolution while the other is just beginning. Consolidation here

would serve only to unduly delay the resolution of the State Respondents’ Motion to Dismiss the

Herkert Petition and a final determination that the action is no longer a live controversy. Ineffi-

ciency and delay would be the sole results of consolidation here, without any countervailing benefit

of judicial economy.

CONCLUSION

For the foregoing reasons, the State Respondents respectfully request that this Court deny

the Williams Petitioners’ Motion to Consolidate.

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Dated: New York, NY Respectfully submitted,
November 2, 2023
SELENDY GAY ELSBERG PLLC

By: /s/ Faith E. Gay
Faith E. Gay
Temidayo Aganga-Williams
Claire O’Brien
SELENDY GAY ELSBERG PLLC
1290 Avenue of the Americas
New York, NY 10104
Tel: 212-390-9000
fgay@selendygay.com
tagangawilliams@selendygay.com
cobrien@selendygay.com

Attorneys for the State of New York and Kathy
Hochul in her capacity as Governor of the State
of New York

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND

SCOTT HERKERT, VITO FOSSELLA in his
capacity as Staten Island Borough President,
NICOLE MALLIOTAKIS in her capacity as a Index No. 85174/2023
member of U.S. Congress, ANDREW
LANZA in his capacity as a New York State
Senator, MICHAEL TANNOUSIS in his ca-
pacity as a New York State Representative,
MICHAEL REILLY in his capacity as a New
York State Representative, SAM PI-
ROZZOLO in his capacity as a New York
State Representative, JOE BORELLI in his
capacity as a member of City Council, and
DAVID CARR in his capacity as a member of
City Council,

Petitioners/Plaintiffs

THE STATE OF NEW YORK, THE CITY
OF NEW YORK, KATHY HOCHUL in her
capacity as Governor of the State of New
York, ERIC ADAMS in his capacity as Mayor
of the City of New York, MOLLY WASOW
PARK in her capacity as the Commissioner of
the New York City Department of Social Ser-
vices,

Respondents/Defend-
ants

CERTIFICATE OF WORD COUNT COMPLIANCE

As a member of Selendy Gay Elsberg PLLC, I hereby certify that this memorandum of law

is in compliance with Rule 202.8-b of the Uniform Civil Rules for the Supreme Court and County

Court. The foregoing document was prepared using Microsoft Word, and the document contains

3,746 words as calculated by the application’s word counting function.

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Dated: New York, New York
November 2, 2023
/s/ Temidayo Aganga-Williams
Temidayo Aganga-Williams

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Case Info

Judge

Wayne Ozzi Track Judge’s New Case

Case No.

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Document Filed Date

November 02, 2023

Case Filing Date

August 24, 2023

County

Parties

AGANGA-WILLIAMS, TEMIDAYO Attorney for the Defendant
Andrew Lanza in his capacity as a New York State Representative Plaintiff
BAKER, ALICE ROBIE Attorney for the Defendant
CIAMPOLI, JOHN JOSEPH N
David Carr Plaintiff
Eric Adams Defendant
GAY, FAITH E Attorney for the Defendant
GELORMINO, LOUIS M. Attorney for the Plaintiff
HUGHES, CHAD STEVEN Attorney for the Defendant
Jamie Williams Non Party
Joe Borelli Plaintiff
Kathy Hochul Defendant
MECHANICK, CHASE HENRY Attorney for the Defendant
Michael Riley Plaintiff
Michael Tannousis Plaintiff
Molly Wasow Park Defendant
Nicole Malliotakis in her capacity as a member of U.S. Congress Plaintiff
O'BRIEN, CLAIRE ELIZABETH Attorney for the Defendant
RAUCHBERG, ANDREW JAMES Attorney for the Defendant
Sam Pirozzolo Plaintiff
Scott Herkert Plaintiff
The City of New York Defendant
The State of New York Defendant
Vito Fossella in his capacity as Staten Island Borough President Plaintiff
LOUIS GELOSKY Attorney
MARK FONTE Attorney

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