[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] EILEEN A. RAKOWER, Judge.
Before the court is a motion to consolidate and several cross-motions and affirmations in support, opposition, pertaining to fourteen cases involving incidents during the summer of 2007 which occurred in the premises of 130 Liberty Street, in the City, County, and State of New York, commonly known as the Deutsche Bank Building ("the building").
The building was damaged beyond repair during the terrorist attacks of September 11, 2001. In 2004, the Lower Manhattan Development Corporation ("LMDC") purchased the building for the purpose of abating and demolishing it in its entirety. The contractor defendants were all, in one way or another, connected to the demolition and decontamination of that building.
Eleven actions seek to recover for damages sustained by firefighters with the New York City Fire Department ("FDNY") in response to a fire at the building on August 18, 2007 ("the 8/18 fire"). In these actions, it is alleged that City was negligent with regard to the actions of various contractors, who they claim were unqualified, and City's failure to supervise, manage and conduct the project, and in neglecting to conduct required inspections or to respond adequately to safety violations. Among the many allegations against the contractor defendants, the 8/18 fire plaintiffs allege in their respective complaints that the contractor defendants were responsible for several serious safety lapses. Specifically the plaintiffs allege that workers at the site dismantled the building's standpipe, preventing the firefighters responding to the fire on August 18, 2007 from getting access to water. The plaintiffs also allege that workers at the building barricaded the building's stairwells. The plaintiffs allege that the defendants knew of the hazards that existed in the building because numerous citations and Building Code violations had been issued throughout the course of the demolition.
Actions #1, 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13.
Actions 5 and 6 involve two FDNY firefighters who sustained injuries at the building on August 23, 2007 ("the 8/23 pallet jack incident"). These plaintiffs were assigned to the building on that date to control access while the FDNY investigated the 8/18 fire. It is alleged that a pallet jack fell twenty-three stories onto the firefighters below.
Action 14 involves an accident on July 17, 2007 at the building. It is alleged that a construction worker, employed by Galt, was injured when a scaffold fell on her.
The Lower Manhattan Development Corporation and the Lower Manhattan Construction Command Center ("LMDC") first moved to have Actions #1-10 (eight 8/18 fire actions and two 8/23 pallet jack actions) consolidated for purposes of joint discovery and joint trial. LMDC/LMCCC argues that Actions #1-10 all "involve identical legal issues and claims of negligence against the common defendants, [that] identical contractual relationships exist as regards to all ten (10) actions; [and that] identical and extensive discovery of identical witnesses and documents is anticipated." LMDC submits an affirmation in support of its motion, along with copies of the pleadings in all of the actions it seeks to have consolidated as exhibits.
Plaintiffs in actions 1, 3, 9, 10, 11 and 12 subsequently cross-moved, joining in LMDC's motion, but seeking in addition that the court consolidate Action 12 into Action 1 (as it involves the same plaintiffs, pertains to the same incident, and simply adds one additional defendant); and consolidate Action 11 (which also involves injuries allegedly sustained by an FDNY firefighter in the course of responding to the 8/18 fire) with Actions 1-10. These plaintiffs have submitted an affirmation in support of their cross-motion, with copies of the summonses and complaints in Actions 11 and 12.
Plaintiffs in Action 6 (an action concerning the pallet jack incident) have submitted an affirmation and a memorandum of law in opposition to the above motions. The Action 6 Plaintiffs argue that consolidation of their action with the 8/18 fire actions is improper because "the two accidents are separated by five (5) days time and involve differing factual situations" and "differ in time, subject matter and mechanism of injury. . . ." Further, the Action 6 Plaintiffs argue that consolidation would substantially prejudice them and that they would be unnecessarily delayed in the prosecution of their action. They assert that discovery has been stayed in a number of the 8/18 fire actions pending the New York County District Attorney's Office's ("DANY") criminal investigation/prosecution of the matter (DANY's motion and Galt's cross-motion to specifically have Action 6 stayed was denied by the Honorable Emily Goodman on March 3, 2009). The Action 6 Plaintiffs do concede, however, that Action 5 involves the same pallet jack incident. Annexed to the affirmation as exhibits are copies of the Action 6 Plaintiffs' summons and complaint; verified bill of particulars; preliminary conference order, and the 3/3/09 order of the Honorable Emily Goodman denying DANY's motion to stay proceedings in Action 6 during the pendency of criminal proceedings concerning the 8/18 fire.
The City of New York ("City") cross-moves for consolidation, and submits an affidavit in support thereof. The City supports LMDC's motion insofar as it seeks consolidation of Actions 1-10, but also requests that the court consolidate Actions 13 and 14 therewith. The Action 13 Plaintiff (Aristeo Kardi) was another FDNY firefighter who allegedly sustained injuries in the course of responding to the 8/18 fire, and raises substantially similar allegations as the other 8/18 fire actions. By contrast, in Action 14, Plaintiff (Maria Yulfo) was allegedly injured approximately one month prior to the 8/18 fire when a scaffold in the building fell on her. Annexed to the City's affirmation as exhibits are the summonses and complaints in Actions 13 and 14; and the City's verified answers to those actions. The Action 14 Plaintiff submits an affirmation in opposition to the City's cross-motion to consolidate her action with Actions 1-10. She argues that consolidation is improper as the facts of her case "have absolutely nothing to do with the facts underlying the actions" which the City seeks to have consolidated with her own.
LMDC has submitted a supplemental affirmation in support of its motion, asserting that, since Action 6 has been reassigned to a City part in light of the City's being joined as a third party therein, as well as the fact that the City is a primary defendant in seven actions out of Actions 1-10, consolidation is even more appropriate. Annexed to LMDC's supplemental affirmation as an exhibit is the 5/4/09 order transferring Action 6 to a City part.
Bovis has submitted an affirmation in opposition to the motions to consolidate the above actions. Bovis claims that the moving parties have failed to demonstrate that common questions of law or fact exist such that consolidation is warranted. Moreover, Bovis asserts that the cases which are the subject of this motion involve different events. Bovis also points to the fact that three actions pertaining to the 8/18 fire have been stayed pending DANY's criminal investigation as another factor counseling against consolidation.
Galt has submitted an affirmation in partial opposition to LMDC/LMCCC's motion to consolidate. Galt only takes issue with LMDC/LMCCC's motion insofar as the motion fails to request stays of the consolidated actions, and requests that the court maintain the current stays and expand their effect to any actions that are consolidated therewith.
Regional Scaffolding Hoisting Co. has submitted an affirmation in opposition, wherein it consents to consolidation for purposes of conducting joint discovery but opposes consolidation for purposes of joint trial.
The Action 6 Plaintiffs (Corbetis) submitted a further affirmation opposing the cross-motions which seek to consolidate additional matters with Actions 1-10, for reasons stated in their original submission.
Paradise Energy Electrical Contractors, Inc. ("Paradise") has submitted an affirmation in opposition to consolidation, arguing that different issues of law and fact predominate, and that, in any event, consolidation for purposes of joint trial would be impractical and unwieldy, and would unfairly prejudice Paradise, which is not a named defendant in all of the actions. In addition, Paradise argues that, since many of these matters are in their infancy, with little or no discovery having taken place at this juncture, consolidation is premature.
Gilbane Building Company ("Gilbane") has submitted an affirmation in partial opposition to LMDC/LMCCC's motion to consolidate. Gilbane does not oppose consolidation of Actions 1, 3, 8, 9 and 10 for purposes of joint discovery. Gilbane objects to consolidation with respect to actions 2, 4, 5, 6, and 7, as it is not a party to those actions.
DANY has submitted an affirmation in support of the parties' motions to consolidate, and requests that the court maintain the stays currently in effect in several actions regarding the 8/18 fire, and expand the stays to cover all other actions which are consolidated along with them.
The City has submitted a reply affirmation in further support of its cross-motion for consolidation for purposes of joint discovery, arguing that, even though some of the actions are based upon different incidents, the City anticipates that similar discovery will be sought from the City in each of the actions.
Finally, LMDC submits a reply affirmation in further support of its motion for consolidation.
CPLR § 602(a) states, in relevant part:
When actions involving a common question of law or fact are pending before the court, the court, upon motion, may order . . . the actions consolidated . . . and may make such other orders . . . as may tend to avoid unnecessary costs or delay . . .
"[I]t is well settled that there is a preference for consolidation in the interest of judicial economy where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" ( Geneva Temps, Inc. v. New World Communities, Inc., 2005 NY Slip Op 10203, *2 [1st Dept. 2005]).
Based upon its review of the record, the court finds that consolidation of the 8/18 fire actions for purposes of both joint discovery and joint trial solely on the issue of liability is warranted. All of the 8/18 fire actions involve allegations of negligence on the part of the numerous defendants, in that the defendants, through their actions and/or omissions, helped cause the fire, created conditions in the building which stifled the FDNY's response to the fire, and created conditions which inhibited the FDNY's movement within the building, causing injuries and, in the case of two FDNY firefighters, death.
In addition to consolidation of all the fire actions, the court finds that the stays of discovery currently in place in Actions 1-3 should be expanded to have effect on all of the consolidated fire actions.
However, there is nothing in the record before the court which justifies consolidation of the pallet jack actions with the 8/18 fire actions. The fire actions and the pallet jack actions involve two totally different incidents which occurred five days apart from one another — the only commonality being that both incidents occurred at the same building, and, consequently, some of the same parties are named as defendants. There is nothing in the record to support a finding that common questions of law and fact predominate over these two distinct incidents.
Consolidation of the two pallet jack actions into a single action for purposes of joint discovery and joint trial, however, is clearly warranted, as the issues of law and fact are identical.
Lastly, the court declines to consolidate the Yulfo action with either the fire actions or the pallet jack actions, as this action plainly involves separate and distinct issues of law and fact.
Wherefore it is hereby
ORDERED that the motion to consolidate Action 12 with Action 1 for all purposes, is granted, and the consolidated under Index Number 102405/08 and the consolidated action shall bear the following caption: and it is further
ORDERED that the motions and cross-motions to consolidate are granted to the extent that Actions 2, 3, 4, 7, 8, 9, 10, 11, and 13 are consolidated in this Court with Action 1 for purposes of joint discovery and joint trial on the issue of liability only, and each shall continue to have a separate existence and a separate index number; and it is further
ORDERED that the Orders staying discovery currently in effect in Actions 1-3 pursuant to this Court's September 16, 2008 Order shall remain in effect and shall apply in equal force to the 8/18 fire actions consolidated above; and it is further
ORDERED that Actions 5 and 6 are consolidated in this Court for purposes of joint discovery and joint trial on the issue of liability only, and each shall continue to have a separate existence and a separate index number; and it is further
ORDERED that the action titled Yulfo v. Bovis Lend Lease, Inc., Index No. 112866/08, shall continue as a separate action; and it is further
ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated actions; and it is further
ORDERED that upon service on the Clerk of the Court of a copy of this order with notice of entry, the Clerk shall consolidate the papers in the actions hereby consolidated and shall mark his records to reflect the consolidation; and it is further
ORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office (Room 158), who is hereby directed to mark the court's records to reflect the consolidations.
This constitutes the decision and order of the court. All other relief requested is denied.