On February 05, 2015 a
Motion-Secondary
was filed
involving a dispute between
Cdc Development Properties, Inc.,
and
American Independent Paper Mills Supply Co., Inc.,
Hudson Harbor Homes, Inc.,
for Commercial
in the District Court of Westchester County.
Preview
FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER INDEX NO.51573-2015
------------------------------------------------------------------X
CDC Development Properties Inc
Plaintiff,
-against-
REPLY AFFIRMATION
AMERICAN INDEPENDENT PAPER MILLS
SUPPLY CO., INC and Hudson Harbor Homes, Inc.
Defendants.
-----------------------------------------------------------------X
1. Mark E. Constantine, Esq. an attorney duly admitted to practice in the State of New
York, in reply to the plaintiff’s opposition to consolidation, affirms the following
pursuant to section 2106 of the CPLR and under the penalty of perjury.
2. The plaintiff has said nothing that negates the fact that the CPLR and well settled case
law provide for the appropriate relief of consolidation in this instance.
3. More particularly, CPLR § 602(a) provides for consolidation on the basis that
Generally. When actions involving a common question of law or fact are pending
before a court, the court, upon motion, may order a joint trial of any or all the matters
in issue, may order the actions consolidated, and may make such other orders
concerning proceedings therein as may tend to avoid unnecessary costs or delay.
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FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018
4. This principle was aptly illustrated in AUROA LOAN SERVICES LLC v.
SCHELLER, 009-22839 (5-22-2014) the Court consolidated two foreclosure actions
on the basis that both actions claim foreclosure of the same mortgage lien, albeit by
different named plaintiffs.
5. In the instant case it is undeniable that the instant Action and the Village Court
Action are both breach of contract (lease) actions concerning the same lease and the
same parties during the same time frame such that the same result is required here.
6. The law is clear that Consolidation is appropriate and necessary in the interests of
justice and judicial economy when the causes of action share an identity of parties,
the same property and are based upon the same nucleus of facts and in order to avoid
inconsistent findings.
7. Additionally, there is no doubt that both actions stem from the facts and
circumstances surrounding the ownership, tenancy, control and possession of real
property located at 29 South Depot Plaza, Tarrytown, New York.
8. It is also important to note that the Supreme Court Action was in place at all times
relevant to the Village Court Actions such that both parties had and have full
knowledge of the proceedings at the time of the subsequent action.
9. It is also noteworthy that the parties in both actions are identical.
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NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018
10. The Court will also note that both Actions are trial ready.
11. Accordingly, there will be no material prejudice to any party upon consolidation of
the actions.
12. The law is clear that, upon the commencement of litigation, the parties thereto are
encouraged to assert any claims, defenses and counterclaims they may have against
each other or any other individual for that matter arising out of the same nucleus of
facts.
13. The Courts must discourage parties from lying in wait and trying to spring their
claims upon each other long after they have already discovered that they may have a
cause of action.
14. The well settled purpose of this policy is to encourage diligent, efficient and final
disposition of claims.
15. The Court of Appeals has consistently held that “That having been said, where the
Court is faced with a joinder application, the burden is placed upon the party
opposing such a motion to demonstrate the likelihood of substantial prejudice that
would ensue if the relief were granted, Vigo S.S. Corp. v. Marship Corp., 26 NY 2d
157 (1970).
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16. Furthermore, it is well settled in the Appellate Division that “It is only where the
party opposing such an application demonstrates the likelihood of substantial
prejudice that joinder will be denied,” Johnson v. Berger 171 AD 2d 728 (2nd Dept.
1991).
17. No party in either action would be prejudiced by consolidation and CDC has failed to
provide any compelling evidence to demonstrate otherwise such that consolidation is
in order.
18. In Aurora supra the court very relevantly found that “In the matter that is sub judice,
counsel for Defendants correctly and adeptly points out that while the two actions
were commenced more than four years apart, they share identical (rather than similar)
questions of both law and fact and that they are at not at different stages of the legal
process. The failure to join these actions together, it is asserted, would engender
substantial prejudice to the detriment of Defendants. Inasmuch as the issues of law
and fact herein have not been resolved, it is hard to imagine that any prejudice at all
would befall Plaintiff. It is clear beyond cavil that these matters should be properly
joined and adjudicated as one.”
19. For the reasons stated herein the actions must be consolidated. In fact, if they are not
consolidated, the only party that will suffer significant prejudice is AIP.
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FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015
NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018
Dated: November 15, 2018
Irvington, New York
Mark E. Constantine, Esq.
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Document Filed Date
November 15, 2018
Case Filing Date
February 05, 2015
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FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER INDEX NO.51573-2015 ------------------------------------------------------------------X CDC Development Properties Inc Plaintiff, -against- REPLY AFFIRMATION AMERICAN INDEPENDENT PAPER MILLS SUPPLY CO., INC and Hudson Harbor Homes, Inc. Defendants. -----------------------------------------------------------------X 1. Mark E. Constantine, Esq. an attorney duly admitted to practice in the State of New York, in reply to the plaintiff’s opposition to consolidation, affirms the following pursuant to section 2106 of the CPLR and under the penalty of perjury. 2. The plaintiff has said nothing that negates the fact that the CPLR and well settled case law provide for the appropriate relief of consolidation in this instance. 3. More particularly, CPLR § 602(a) provides for consolidation on the basis that Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. 1 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018 4. This principle was aptly illustrated in AUROA LOAN SERVICES LLC v. SCHELLER, 009-22839 (5-22-2014) the Court consolidated two foreclosure actions on the basis that both actions claim foreclosure of the same mortgage lien, albeit by different named plaintiffs. 5. In the instant case it is undeniable that the instant Action and the Village Court Action are both breach of contract (lease) actions concerning the same lease and the same parties during the same time frame such that the same result is required here. 6. The law is clear that Consolidation is appropriate and necessary in the interests of justice and judicial economy when the causes of action share an identity of parties, the same property and are based upon the same nucleus of facts and in order to avoid inconsistent findings. 7. Additionally, there is no doubt that both actions stem from the facts and circumstances surrounding the ownership, tenancy, control and possession of real property located at 29 South Depot Plaza, Tarrytown, New York. 8. It is also important to note that the Supreme Court Action was in place at all times relevant to the Village Court Actions such that both parties had and have full knowledge of the proceedings at the time of the subsequent action. 9. It is also noteworthy that the parties in both actions are identical. 2 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018 10. The Court will also note that both Actions are trial ready. 11. Accordingly, there will be no material prejudice to any party upon consolidation of the actions. 12. The law is clear that, upon the commencement of litigation, the parties thereto are encouraged to assert any claims, defenses and counterclaims they may have against each other or any other individual for that matter arising out of the same nucleus of facts. 13. The Courts must discourage parties from lying in wait and trying to spring their claims upon each other long after they have already discovered that they may have a cause of action. 14. The well settled purpose of this policy is to encourage diligent, efficient and final disposition of claims. 15. The Court of Appeals has consistently held that “That having been said, where the Court is faced with a joinder application, the burden is placed upon the party opposing such a motion to demonstrate the likelihood of substantial prejudice that would ensue if the relief were granted, Vigo S.S. Corp. v. Marship Corp., 26 NY 2d 157 (1970). 3 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018 16. Furthermore, it is well settled in the Appellate Division that “It is only where the party opposing such an application demonstrates the likelihood of substantial prejudice that joinder will be denied,” Johnson v. Berger 171 AD 2d 728 (2nd Dept. 1991). 17. No party in either action would be prejudiced by consolidation and CDC has failed to provide any compelling evidence to demonstrate otherwise such that consolidation is in order. 18. In Aurora supra the court very relevantly found that “In the matter that is sub judice, counsel for Defendants correctly and adeptly points out that while the two actions were commenced more than four years apart, they share identical (rather than similar) questions of both law and fact and that they are at not at different stages of the legal process. The failure to join these actions together, it is asserted, would engender substantial prejudice to the detriment of Defendants. Inasmuch as the issues of law and fact herein have not been resolved, it is hard to imagine that any prejudice at all would befall Plaintiff. It is clear beyond cavil that these matters should be properly joined and adjudicated as one.” 19. For the reasons stated herein the actions must be consolidated. In fact, if they are not consolidated, the only party that will suffer significant prejudice is AIP. 4 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2018 02:41 PM INDEX NO. 51573/2015 NYSCEF DOC. NO. 276 RECEIVED NYSCEF: 11/15/2018 Dated: November 15, 2018 Irvington, New York Mark E. Constantine, Esq. 5 of 5