Preview
FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
------------------------------------------------------------------x
THALIA AGATHOCLEOUS, Index No. 703721/2018
Plaintiff,
-against- AFFIRMATION IN SUPPORT
795 FIFTH AVENUE CORPORATION d/b/a THE
PIERRE,
Defendant.
------------------------------------------------------------------x
Gene Novak, Esq, an attorney duly admitted to practice in the Courts of the State of New
York, affirms the following under the penalty of perjury:
1. I am an associate of McMahon Martine & Gallagher, LLP, attorneys for the
1St 2nd
Defendant in Action, 795 AVENUE CORPORATION, and attorneys for the Defendant in
Action, IHMS LLC, and as such am fully familiar with the facts and circumstances hereinafter
set forth based upon my review of the file maintained in this office.
2. I submit this Affirmation in support of this motion for an Order:
(a) Pursuant to CPLR 6602(a), granting a consolidation of the Action
named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020) into this
action presently pending before the Court under the present Index No.:
703721/2018; and
(b) for such other and further relief as the Court deems proper and just.
PERTINENT FACTS AND PROCEDURAL HISTORY:
3. On March 12, 2018, the present action was commenced by filing a Summons and
"A"
Verified Complaint in the Queens County Supreme Court. (Attached hereto as Exhibit is a
copy ofthe subject Summons andVerified Complaint).
4. The aforesaid Verified Complaint alleges that the subject accident occurred on
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61"
January 6, 2018, at the premises located at 2 East Street, New York, NY 10065. The premises
are known as The Pierre Hotel.
5. The aforementioned Verified Complaint, named only one defendant in this action,
to wit: 795 FIFTH AVENUE CORPORATION, the owner of the subject premises located at 2
615
East Street, New Yodc, NY 10065.
6. On April 10, 2018, your affirmant's office appeared on behalf of the Defendant,
795 FIFTH AVENUE CORPORATION, in the within action by filing Verified Answer. (Attached
"B"
hereto as Exhibit is a copy ofthe Verified Answer dated Apnl 10, 2018).
2nd
7. On December 29, 2020, the plaintiff commenced the action by filing her
Summons and Verified Complaint also in the Queens County Supreme Court. (Attached hereto as
"C"
Exhibit is a copy of the Summons and Verified Complaint dated December 29, 2020).
8. Similarly to the Verified Complaint in the within action (Exhibit "A"), the Verified
2nd
Complaint in Action also alleges that the accident occurred on January 6, 2018 at the premises
61"
located at 2 East Street, New York, NY 10065
9. This time the plaintiff commenced the action against the leasee of the subject
"D"
property, to wit: IHMS LLC. (Attached hereto as Exhibit are copies of the assignment of the
lease and the subject lease agreement).
2nd
10. Your affirmant's office appeared on behalf of the Defendant in action, IHMS
"E"
LLC, by filing the Verified Answer on February 8, 2021. (Attached hereto as Exhibit isa copy
of the Verified Answer dated Febmary 8, 2021).
11. Discovery in the within action has been completed and the Note of Issue was filed
"F"
on September 5, 2019. (Attached hereto as Exhibit is a copy of the subject Note of Issue).
ARGUMENT:
L Both Actions Involve A C:rcr Question Of Law And
Fact As They Both Stem From The Same Alleged Accident
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12. Under CPLR §602(a), where actions involving a common question of law or fact
are pending before a court, the court, upon motion, may order the actions consolidated, and may
make such other orders conceming proceedings therein as may tend to avoid unnecessary costs or
delay. In considering CPLR 4602 generally, and CPLR §602(a) specifically, Courts in New York
State have long recognized the need for judicial economy and the need to avoid unnecessary
duplication of trials and unnecessary costs where actions feature common facts and common legal
(2nd
issues. Mideal Homes Coro. v. L&C Concrete Work. Inc., 90 A.D. 2d 789, 455 N.Y.S. 2d 394
(2nd
Dept. 1982); Perini Corp. v. WDF. Inc., 33 A.D. 3d 605, 822 N.Y.S.2d 295 Dept. 2006);
Chinatown Apartments, Inc. v. New York City Transit Authority, 100 A.D. 2d 824, 474 N.Y.S. 2d
(1St
763 Dept. 1984).
2nd
13. Here, the action named as Thalia Agathocleous v. IHMS LLC (Index No.
725313/2020, pending in the Queens County Supreme Court) should be consolidated into the
within action under the original Index No.: 703721/2018, because both actions arise from the same
alleged accident, and involve common facts and common legal issues. Both actions were brought
before the Queens County Supreme Court and allege that the Plaintiff was injured on January 6,
61st "A"
2018, at the premises located at 2 East Street, New York, NY 10065. (Exhibits and "C").
In both actions, the plaintiff alleges that the injuries suffered were caused by negligence of the
"A"
named defendants. (Exhibit and "C"). Since the two actions have common facts and legal
issues, consolidation of the actions is necessary to avoid the duplication of trials and the
expenditure of unnecessary costs.
14. Consolidation where all relevant actions are fused together is appropriate in these
actions. None of the parties will be placed in the position of being both a plaintiff and a defendant
4th
if the cases are truly merged. Siegel. New York Practice Section 127, pg. 220, ED. 200f.
Moreover, since each of the involved cases are pending in the County of Queens, there is no
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change in venue required. Accordingly, it is respectfully requested that the caption under the
original Index No.: 703721/2018 be amended upon consolidation to appear as follows:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------x
THALIA AGATHOCLEOUS,
Index No.: 703721/2018
Plaintiff,
-against-
795 FIFTHE AVENUE CORPORATION d/b/a THE PIERRE
and IHMS LLC,
Defendants.
------------------------------------------------------------------------x
2nd
II. No Discovery Is Necessary In Acton Since All Relevant Steps
In The Discovery Proceeding Were Accc-iiipli:lied In The Within Action
15. There is no need for unnecessary duplication and costs that the parties may incur
2nd
should the action be allowed to proceed independently and not be consolidated into the within
action.
16. The depositions and IMEs were held.
17. Your affirmant's office produced alldocumentation including, but not limited to the
2"d
contracts, amendments, and assignments in which the defendant in action, IHMS LLC, was a
"G"
party. (Attached hereto as Exhibit is a copy of the Supplemental Response to the Plaintiff's
Combined Demands for Discovery).
18. Importantly, your affirmant's office produced for the deposition Frank Piccolo who,
2"I
at the time of the deposition, was an employee of the Defendant in Action, IHMS LLC, and who
was in charge of the overall safety and security of the subject premises, known as The Pierre Hotel.
"H"
(Attached hereto as Exhibit is a copy of the excerpt from the EBT transcript dated March 13,
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2019).
2nd
19. It appears that the purpose of commencing the action, naming IHMS LLC as a
defendant, was to bring the proper corporate entity, under which The Pierre Hotel operated. (Exhibit
"H").
20. Since all necessary discovery steps were accomplished in the within action, itwill be
2nd
duplicative to undergo same discovery process again in the action; therefore, to avoid
2nd
unnecessary costs or delay, the action named as Thalia Agathocleous v. IHMS LLC (Index No.
725313/2020, pending in the Queens County Supreme Court) should be consolidated into the within
action.
CONCLUSION_:
21. Based upon the foregoing, itis respectfully submitted that, since a consolidation of
both actions is appropriate, the actions should be consolidated under the original Index No.:
703721/2018, and the caption should be changed as reflected above.
22. No prior request for similar relief has been made in thismatter.
WHEREFORE, itis respectfully requested that this Court issue an Order,
(a) Pursuant to CPLR §602(a), granting a consolidation of the Action
named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020) into this
action presently pending before the Court under the present Index No.:
703721/2018; and
(b) for such other and further relief as the Court deems proper and just.
Dated: Brooklyn, New York
February 9, 2021 .
Yours, etc. /
/
BY: GENENOVAK, ESQ.
McMAÚON, MARTINE & GALLAGHER, LLP
1st
Attorrieys for Defendant in Action
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NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021
795 FIFTH AVENUE CORPORATION
2nd
Attorneys for Defendant in Action
IHMS LLC
55 Washington Street, 7th Floor
Brooklyn, New York 11201
(212) 747-1230
File No.: 553.0215
TO: SACCO & FLLAS, LLP
1st 2nd
Attomeys for Plaintiff in and Actions
THALIA AGATHOCLEOUS
7tl¹
31-19 Newtown Avenue, Floor
Astoria, New York 11102
(718) 746-3440
8
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Preview
FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ------------------------------------------------------------------x THALIA AGATHOCLEOUS, Index No. 703721/2018 Plaintiff, -against- AFFIRMATION IN SUPPORT 795 FIFTH AVENUE CORPORATION d/b/a THE PIERRE, Defendant. ------------------------------------------------------------------x Gene Novak, Esq, an attorney duly admitted to practice in the Courts of the State of New York, affirms the following under the penalty of perjury: 1. I am an associate of McMahon Martine & Gallagher, LLP, attorneys for the 1St 2nd Defendant in Action, 795 AVENUE CORPORATION, and attorneys for the Defendant in Action, IHMS LLC, and as such am fully familiar with the facts and circumstances hereinafter set forth based upon my review of the file maintained in this office. 2. I submit this Affirmation in support of this motion for an Order: (a) Pursuant to CPLR 6602(a), granting a consolidation of the Action named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020) into this action presently pending before the Court under the present Index No.: 703721/2018; and (b) for such other and further relief as the Court deems proper and just. PERTINENT FACTS AND PROCEDURAL HISTORY: 3. On March 12, 2018, the present action was commenced by filing a Summons and "A" Verified Complaint in the Queens County Supreme Court. (Attached hereto as Exhibit is a copy ofthe subject Summons andVerified Complaint). 4. The aforesaid Verified Complaint alleges that the subject accident occurred on 3 1 of 6 FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 61" January 6, 2018, at the premises located at 2 East Street, New York, NY 10065. The premises are known as The Pierre Hotel. 5. The aforementioned Verified Complaint, named only one defendant in this action, to wit: 795 FIFTH AVENUE CORPORATION, the owner of the subject premises located at 2 615 East Street, New Yodc, NY 10065. 6. On April 10, 2018, your affirmant's office appeared on behalf of the Defendant, 795 FIFTH AVENUE CORPORATION, in the within action by filing Verified Answer. (Attached "B" hereto as Exhibit is a copy ofthe Verified Answer dated Apnl 10, 2018). 2nd 7. On December 29, 2020, the plaintiff commenced the action by filing her Summons and Verified Complaint also in the Queens County Supreme Court. (Attached hereto as "C" Exhibit is a copy of the Summons and Verified Complaint dated December 29, 2020). 8. Similarly to the Verified Complaint in the within action (Exhibit "A"), the Verified 2nd Complaint in Action also alleges that the accident occurred on January 6, 2018 at the premises 61" located at 2 East Street, New York, NY 10065 9. This time the plaintiff commenced the action against the leasee of the subject "D" property, to wit: IHMS LLC. (Attached hereto as Exhibit are copies of the assignment of the lease and the subject lease agreement). 2nd 10. Your affirmant's office appeared on behalf of the Defendant in action, IHMS "E" LLC, by filing the Verified Answer on February 8, 2021. (Attached hereto as Exhibit isa copy of the Verified Answer dated Febmary 8, 2021). 11. Discovery in the within action has been completed and the Note of Issue was filed "F" on September 5, 2019. (Attached hereto as Exhibit is a copy of the subject Note of Issue). ARGUMENT: L Both Actions Involve A C:rcr Question Of Law And Fact As They Both Stem From The Same Alleged Accident 4 2 of 6 FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 12. Under CPLR §602(a), where actions involving a common question of law or fact are pending before a court, the court, upon motion, may order the actions consolidated, and may make such other orders conceming proceedings therein as may tend to avoid unnecessary costs or delay. In considering CPLR 4602 generally, and CPLR §602(a) specifically, Courts in New York State have long recognized the need for judicial economy and the need to avoid unnecessary duplication of trials and unnecessary costs where actions feature common facts and common legal (2nd issues. Mideal Homes Coro. v. L&C Concrete Work. Inc., 90 A.D. 2d 789, 455 N.Y.S. 2d 394 (2nd Dept. 1982); Perini Corp. v. WDF. Inc., 33 A.D. 3d 605, 822 N.Y.S.2d 295 Dept. 2006); Chinatown Apartments, Inc. v. New York City Transit Authority, 100 A.D. 2d 824, 474 N.Y.S. 2d (1St 763 Dept. 1984). 2nd 13. Here, the action named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020, pending in the Queens County Supreme Court) should be consolidated into the within action under the original Index No.: 703721/2018, because both actions arise from the same alleged accident, and involve common facts and common legal issues. Both actions were brought before the Queens County Supreme Court and allege that the Plaintiff was injured on January 6, 61st "A" 2018, at the premises located at 2 East Street, New York, NY 10065. (Exhibits and "C"). In both actions, the plaintiff alleges that the injuries suffered were caused by negligence of the "A" named defendants. (Exhibit and "C"). Since the two actions have common facts and legal issues, consolidation of the actions is necessary to avoid the duplication of trials and the expenditure of unnecessary costs. 14. Consolidation where all relevant actions are fused together is appropriate in these actions. None of the parties will be placed in the position of being both a plaintiff and a defendant 4th if the cases are truly merged. Siegel. New York Practice Section 127, pg. 220, ED. 200f. Moreover, since each of the involved cases are pending in the County of Queens, there is no 5 3 of 6 FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 change in venue required. Accordingly, it is respectfully requested that the caption under the original Index No.: 703721/2018 be amended upon consolidation to appear as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS -------------------------------------------------------------x THALIA AGATHOCLEOUS, Index No.: 703721/2018 Plaintiff, -against- 795 FIFTHE AVENUE CORPORATION d/b/a THE PIERRE and IHMS LLC, Defendants. ------------------------------------------------------------------------x 2nd II. No Discovery Is Necessary In Acton Since All Relevant Steps In The Discovery Proceeding Were Accc-iiipli:lied In The Within Action 15. There is no need for unnecessary duplication and costs that the parties may incur 2nd should the action be allowed to proceed independently and not be consolidated into the within action. 16. The depositions and IMEs were held. 17. Your affirmant's office produced alldocumentation including, but not limited to the 2"d contracts, amendments, and assignments in which the defendant in action, IHMS LLC, was a "G" party. (Attached hereto as Exhibit is a copy of the Supplemental Response to the Plaintiff's Combined Demands for Discovery). 18. Importantly, your affirmant's office produced for the deposition Frank Piccolo who, 2"I at the time of the deposition, was an employee of the Defendant in Action, IHMS LLC, and who was in charge of the overall safety and security of the subject premises, known as The Pierre Hotel. "H" (Attached hereto as Exhibit is a copy of the excerpt from the EBT transcript dated March 13, 6 4 of 6 FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 2019). 2nd 19. It appears that the purpose of commencing the action, naming IHMS LLC as a defendant, was to bring the proper corporate entity, under which The Pierre Hotel operated. (Exhibit "H"). 20. Since all necessary discovery steps were accomplished in the within action, itwill be 2nd duplicative to undergo same discovery process again in the action; therefore, to avoid 2nd unnecessary costs or delay, the action named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020, pending in the Queens County Supreme Court) should be consolidated into the within action. CONCLUSION_: 21. Based upon the foregoing, itis respectfully submitted that, since a consolidation of both actions is appropriate, the actions should be consolidated under the original Index No.: 703721/2018, and the caption should be changed as reflected above. 22. No prior request for similar relief has been made in thismatter. WHEREFORE, itis respectfully requested that this Court issue an Order, (a) Pursuant to CPLR §602(a), granting a consolidation of the Action named as Thalia Agathocleous v. IHMS LLC (Index No. 725313/2020) into this action presently pending before the Court under the present Index No.: 703721/2018; and (b) for such other and further relief as the Court deems proper and just. Dated: Brooklyn, New York February 9, 2021 . Yours, etc. / / BY: GENENOVAK, ESQ. McMAÚON, MARTINE & GALLAGHER, LLP 1st Attorrieys for Defendant in Action 7 5 of 6 FILED: QUEENS COUNTY CLERK 02/09/2021 05:10 PM INDEX NO. 703721/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/09/2021 795 FIFTH AVENUE CORPORATION 2nd Attorneys for Defendant in Action IHMS LLC 55 Washington Street, 7th Floor Brooklyn, New York 11201 (212) 747-1230 File No.: 553.0215 TO: SACCO & FLLAS, LLP 1st 2nd Attomeys for Plaintiff in and Actions THALIA AGATHOCLEOUS 7tl¹ 31-19 Newtown Avenue, Floor Astoria, New York 11102 (718) 746-3440 8 6 of 6