Opinion
Index No. 31173/2017E Mtn. Seq. No. 1
06-08-2021
ROMEL QUALLS, Plaintiff, v. BOP NE, LLC and TISHMAN CONSTRUCTION CORPORATION, Defendants.
Unpublished Opinion
PRESENT: HON. LUCINDO SUAREZ JUDGE
DECISION AND ORDER
Lucindo Suarez, Judge
PAPERS NUMBERED
Plaintiffs Order to Show Cause, Affirmation in Support, Emergency Affirmation Seeking Stay
1, 2, 3
4
5
At the return date of this application. Defendants in Action # 1 argued that this court should not consider Plaintiffs reply affirmation dated June 4, 2021. This court finds that it is constrained pursuant to 22 NYCRR §202.8-d from considering Plaintiffs reply affirmation as he failed to seek advance permission from the court to submit same.
Defendants Tishman Construction Corporation of New York, BOP NE Tower Lesses and BOP NE LLC's in Action # 2 submitted an affirmation in support of the instant application to consolidate.
Upon the enumerated papers, Plaintiff's order to show cause seeking to consolidate is granted, in accordance with the annexed decision and order.
Upon the enumerated papers; a virtual Microsoft Teams conference held June 7, 2021; there being no opposition at the conference concerning the instant application to consolidate except for Defendants in Action # 1 who maintained their opposition; and due deliberation; this court finds:
That Plaintiff's application to consolidate Action # 1 bearing Bronx County Index Number 31173/2017E and Action # 2 bearing Bronx County Index Number 26440/2018E is mandated as both actions involve common questions of law and fact and Defendants in Action # 1 failed to demonstrate any prejudice to a substantial right as a result of the consolidation.
The aforementioned actions seek monetary damages arising from the same construction accident that occurred on September 21,2017. Plaintiff, Romel Qualls, in Action # 1 and Plaintiff, Joseph Pacheco, in Action # 2 (collectively "Plaintiffs") were both employed by E-J Electric Installation Co. ("E-J Electric"). On the day of the accident, both Plaintiffs were assigned to perform work to the facade of a building located at the construction site. The area of the building's facade where Plaintiffs were required to work was at an elevated height.
Plaintiffs' employer, E-J Electric, is named as a Third-Party Defendant in Action # 2.
Therefore, in order to reach their work area, Plaintiffs had to work upon an elevated boom platform. Plaintiffs allege that as the boom platform was being moved from one elevation to another its mechanical arm struck a column causing it to shake and become unstable. As a result, both Plaintiffs were ejected to the ground below. Plaintiff, Romel Qualls, sustained serious permanent injuries and Plaintiff, Joseph Pacheco, died as a result of the accident. Consequently, both actions assert claims under Labor Law §§240(1), 241(6), 200 and for common law negligence, inter alia.
Great deference is accorded to a motion court's discretion in granting consolidation pursuant to CPLR 602(a); where there are common questions of law and fact, there is a preference for consolidation in the interest of judicial economy unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right. See Kukielka v. Santana, 191 A.D.3d 532, 138 N.Y.S.3d 335 (1st Dep't 2021).
Here, Plaintiff contends that consolidating both actions is appropriate because the facts, parties, and claims asserted in both actions are almost identical. Moreover, Plaintiff argues that because both Plaintiffs were involved in the same accident that discovery concerning liability will be the same. Therefore, Plaintiff argues that these matters should be consolidated to avoid inconsistent decisions based upon the same set of facts.
Moreover, Defendants in Action # 2 contend that these matters should be consolidated because the same Judge is assigned to preside over both matters and when dispositive motions are filed a consolidation of these matters will further judicial economy and prevent inconsistent rulings. In addition, Defendants in Action # 2 argue that although both actions are at different stages of discovery, they maintain that the discovery in Action # 2 will be limited to a deposition of Plaintiff s Administrator. Defendants in Action # 2 further argue that physical examinations will not be required due to the death of Plaintiff, Joseph Pacheco. Lastly, Defendants in Action # 2 posit while Action # 2 asserts third-party claims against Plaintiffs' employer, E-J Electric, a separate verdict sheet will be provided to the jury solely surrounding the issues pertaining to the third-party claims, therefore, eliminating any confusion for the jury.
In opposition. Defendants in Action # 1 contend that because discovery in Action # 1 is almost complete and discovery in Action # 2 is still in its infancy these matters should not be consolidated. In addition, Defendants in Action # 1 claim that they will be prejudiced if both matters were tried together because the damages sought in both matters are markedly different. Further, Defendants in Action # 1 argue that they will be prejudiced if both actions are tried together as jury confusion will result due to the third-party claims asserted in Action # 2.
This court finds that Defendants in Action # 1 have not carried their burden in demonstrating that a substantial right will be prejudiced. This court notes that Plaintiffs in either matter have not filed a note issue and certificate of readiness for trial. Furthermore, at the conference it was disclosed that in Action # 1 there may be a need to conduct non-party depositions before the conclusion of discovery. Moreover, at the conference it was further disclosed that in Action # 2 the deposition of the Administrator, Caesar Pacheco, was already scheduled for July 9, 2021, and outside of said deposition the remaining discovery in Action # 2 will be limited due to the death of Plaintiff, Joseph Pacheco. Therefore, although Action # 1 and # 2 are at different stages of discovery this court is unpersuaded that consolidating these matters will result in undue delay.
In addition, this court finds that while Action # 1 and # 2 have some separate and distinct claims for damages and Action # 2 has third-party claims not asserted in Action # I, this court finds that those issues do not outweigh or establish prejudice of substantial right as there are numerous common questions of fact and law regarding Defendants' liability in Action # 1 and # 2 under Labor Law §§240(1), 241(6), 200 and for common law negligence, thereby, making consolidation of these matters appropriate. See Matter of NY City Asbestos Litig, 111 A.D.3d 574, 975 N.Y.S.2d 660 (1st Dep't 2013).
This court notes that Third-Party Defendant, E-J Electric, filed a summary judgment motion in Action # 2 seeking to dismiss the third-party complaint.
Moreover, this court finds that discovery and trial will involve overlapping facts, expert witnesses, documentary evidence, and legal issues, therefore, the consolidation of these matter will streamline discovery, and any issues concerning jury confusion may be addressed by appropriate instructions or at a later date the court may elect to bifurcate or sever the actions for trial. See Matter of Oct. 31, 2021 N.Y. Slip. Op. 03375 (1st Dep't 2021).
Accordingly, it is
ORDERED, that Plaintiffs order to show cause seeking to consolidate Action # 1 bearing Bronx County Index Number 31173/2017E with Action # 2 bearing Bronx County Index Number 26440/2018E, is granted, and consolidated for all purposes including a joint trial on liability and damages under Index Number 31173/2017E; and it is further
ORDERED, that the consolidated action shall bear the following caption:
SUPREME COURT OF THE STATE OF EW YORK COUNTY OF BRONX:
ROMEL QUALLS and CESAR PACHECO, as Administrator of the Estate of JOSEPH PACHECO, and CESAR PACHECO as Guardian of J.A.P, an Infant under the age of 18 and CESAR PACHECO as Guardian of T A P. an Infant under the age of 18, Plaintiffs, v.
BOP NE, LLC, TISHMAN CONSTRUCTION CORPORATION, TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, and BOP NE TOWER LESSES, Defendants.
TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, BOP NE TOWER LESSES and BOP NE LLC, Third-Party Plaintiffs, v.
E-J ELECTRIC INSTALLATION CO., Third-Party Defendant.
Index No.: 31173/2017E
and it is further
ORDERED, that the pleadings in these actions shall stand as the pleadings in the consolidated action; and it is further
ORDERED, that upon service on the Clerk of the Court and the Motion Support Office (Room 217) of a copy of this decision and order with notice of its entry, the Clerk shall consolidate the papers in these actions and shall mark the Clerk's records to reflect the consolidation; and it is further
ORDERED, that the respective attorneys having previously consented,to electronic filing, this consolidated action shall continue as an electronically-filed action.
This constitutes the decision and order of the court.
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