Opinion
05021/04.
Decided October 18, 2004.
Michael F. McKenna, Esq., Lewis McKenna, Esqs., Saddle River, New Jersey. Attorneys for Plaintiff.
Philip M. Halpern, Esq., Collier, Halpern, Newberg, Nolletti Bock, LLP, White Plains, New York, Attorneys for Defendant.
This action arises out of the sale of plaintiff's home located at 63 Whippoorwill Crossing, Armonk New York (the "residence") to defendant. In the complaint, plaintiff (seller) claims that defendant (buyer) breached an agreement dated June 10, 2003 involving a separate contract as to the refurbishment of two bathrooms located in the residence (the "bathroom renovation contract"). Plaintiff contends the bathroom renovation contract was entered into in connection with plaintiff's sale of the residence to defendant, and indeed the contract recites that the parties are plaintiff, as seller, and defendant, as purchaser. Thus, during the negotiations over defendant's purchase of the residence, defendant advised plaintiff that he found the existing condition of the bathrooms unacceptable. In response, to induce defendant to purchase the residence, plaintiff claims that he offered a $25,000 reduction in the asking price of the residence on the condition that defendant agree to pay plaintiff up to $25,000 under the separate contract to renovate the bathrooms for defendant. (See Affidavit of Larry Toulouse, sworn to July 26, 2004 at ¶ 4). It appears that defendant accepted plaintiff's offer, and the parties executed the bathroom renovation contract. In June, 2003, plaintiff initiated the bathroom renovations and the renovations continued through the transfer of title to defendant at the closing of the residence, which occurred in September, 2003. The renovations were evidently completed in December, 2003.
The contract price for the bathrooms' upgrade was capped at $25,000.
The parties dispute who actually performed the renovations at issue. Defendant contends that plaintiff is a builder and that he undertook the bathroom renovations whereas plaintiff contends that he hired others to perform the renovations (including a licensed plumber, who is the only worker plaintiff claims was required to be licensed). The Court notes that the fact that plaintiff may have hired other licensed contractors to perform the work should not impact whether or not plaintiff was required to be licensed. For example, in cases in which the general contractors did not perform any of the home improvement work and had hired all licensed subcontractors to undertake the renovations, the courts have still barred recovery to the general contractors. (See, e.g., Hester Diamond, Inc. v. Teplitz, 160 AD2d 549, app. denied, 76 NY2d 712; The Westchester County Consumer Protection Code, section 863.312(4) of Article XVI of the Administrative Code of Westchester County). Nevertheless, as set forth in more detail, infra, to the extent plaintiff can prove that he merely acted as an agent for defendant by passing the costs he incurred to hire workers to do the bathroom improvements, keeping no profit for himself, plaintiff may be able to show that he was not required to be licensed since he was not engaged in the home improvement business for a profit, which is the only type of home improvement business required to be licensed. (See, e.g., Roth Painting Co. v. Fishman, 175 Misc 2d 525).
Plaintiff asserts that he performed in accordance with the terms of the bathroom renovation contract, and that defendant has paid him only $12,000 of the $25,000 contract price. This action is for the remaining $13,000, which plaintiff claims is due and owing.
Plaintiff commenced this action on April 8, 2004 by filing the Summons and Complaint with the Westchester County Clerk's office. (See Affirmation of Michael F. McKenna, Esq. dated July 27, 2004 "McKenna Aff." at Exhibit D). It appears that prior to filing the Summons and Complaint, on March 31, 2004, plaintiff's counsel sent defendant a courtesy copy of the Summons and Complaint and in the cover letter advised defendant that the dispute over the $13,000 had resulting in the plaintiff's filing of the instant lawsuit. (McKenna Aff. at Exhibit C). For some inexplicable reason, defendant thereafter commenced his own action by filing a Summons and Complaint with the Westchester County Clerk's Office on April 7, 2004 under Index No. 04794/04.
On April 23, 2004, plaintiff served the Summons and Complaint by leaving a copy with a person of suitable age and discretion and mailing another copy to defendant's residence. However, the Affidavit of Service, which is required to be filed to complete such substituted service pursuant to CPLR § 308(2), was not filed with the Westchester County Clerk's Office until May 20, 2004.
Rather than answering the complaint, defendant has moved to dismiss this action on various grounds. First, defendant asserts that the action should be dismissed because plaintiff failed to file the Affidavit of Service within twenty days of service as required by CPLR § 308(2). Second, defendant contends that this action should be dismissed pursuant to CPLR Rule 3211(a)(4) because there is a prior pending action between the same parties and involving the same dispute as the claims asserted in this action i.e., the separate related action defendant filed on April 7, 2004. Lastly, defendant asserts that the action should be dismissed because "plaintiff was not licensed to engage in a home improvement business in Westchester County. . . ." (Notice of Motion to Dismiss dated June 29, 2004 at 1). Defendant also requests that the Court declare as invalid the mechanic's lien filed by plaintiff and order that the Westchester County Clerk discharge the lien.
Plaintiff opposes defendant's motion to dismiss and plaintiff cross-moves for this Court to accept the late filing of the Affidavit of Service nunc pro tunc. Defendant's Motion to Dismiss Pursuant to CPLR Rules 3211(a)(7), 3211(a)(1) and 3015(e)
Defendant asserts that the action must be dismissed because "[plaintiff's] causes of action all concern the monies he claims he is owed pursuant to the home improvement contract, and services attendant thereto. The services spanned the period June through December 2003. I entered into the contract of sale for the [residence] in June, 2003 and closed on the sale in September, 2003. I am informed by my attorneys that [plaintiff's] failure to plead that he is duly licensed dooms his causes of action. . . . Furthermore, he cannot cure this pleading defect because he was never properly licensed to conduct the business upon which he bases his causes of action." (Affidavit of Kenneth Chandler, sworn to June 22, 2004 ("Chandler Aff."), at ¶ 14). Thus, it is defendant's position that the action should be dismissed because plaintiff was not licensed to operate a home improvement business as required by The Westchester County Consumer Protection Code, section 863.313 of Article XVI of the Administrative Code of Westchester County ("Westchester's Administrative Code").
CPLR Rule 3015(e) requires that in an action brought by a home improvement contractor against a consumer, the home improvement contractor must plead that he is licensed by the Westchester County Department of Consumer Affairs, or else face dismissal of his action pursuant to CPLR Rule 3211(a)(7) i.e., failure to state a cause of action.
CPLR Rule 3015(e) provides that "[w]here the plaintiff's cause of action against a consumer arises from the plaintiff's conduct of a business which is required by state or local law to be licensed by . . . the Westchester county department of consumer affairs/weight-measures . . . the complaint shall allege, as part of the cause of action, that plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license. . . ."
Westchester's Administrative Code requires contractors engaged in the business of home improvement to be licensed. (Westchester's Administrative Code § 863.313(1)). New York's Court of Appeals has noted that "[t]he legislative purpose in enacting it was . . . to benefit consumers by shifting the burden on the homeowner to the contractor to establish that the contractor was licensed." ( BF Building Corp. v. Liebig, 76 NY2d 689, 693). A home improvement business is defined as "the business of providing for a profit, a home improvement to an owner, provided, however, the term shall not include labor or services performed by an employee for a contractor." (Westchester's Administrative Code § 863.312(3); emphasis added). A home improvement is defined as "a repair, replacement, remodeling, installation, construction, alteration, conversion, modernization made to, in or upon a private residence, apartment or dwelling place of not more than three (3) units, including but not limited to the following. . . . kitchens and bathrooms." (Westchester's Administrative Code § 863.312(2)). An owner is defined as "a homeowner, tenant, or any other residential dweller who orders, contracts for or purchases a home improvement." (Westchester's Administrative Code § 863.312(6)). And a home improvement contract is defined as "an agreement between a contractor and an owner for the performance of a home improvement, and includes all labor, services and materials to be furnished and performed thereunder, either directly by the contractor or by another person under separate agreement with the contractor." (Westchester's Administrative Code § 863.312(4)).
As a result of this licensing requirement (and similar licensing requirements found in other municipalities), lawsuits instituted by unlicensed home improvement contractors to recover for monies owed pursuant to home improvement contracts are routinely dismissed pursuant to CPLR Rules 3211(a)(7) and 3015(e). ( BF Bldg. Corp. v. Liebig, 76 NY2d 689; AEC Bldg. Assoc. v. Crystal, 246 AD2d 496; Ellis v. Gold, 204 AD2d 260, app. denied, 84 NY2d 807; Botsaris v. JK Bono General Contr. Corp., 266 AD2d 329). The rationale for the dismissals is that an unlicensed home improvement contractor is found to have "forfeited his right to recover damages either on a breach of contract theory or on a quantum meruit theory." ( Ellis, supra, 204 AD2d at 262). In addition, since the unlicensed contractor loses the right to sue under the contract (express or implied), the unlicensed contractor also loses the right to foreclose a mechanic's lien. (Id.; see also AEC Bldg. Assoc., supra; Botsaris, supra) As set forth herein, however, there are limits to the types of actions subject to dismissal, and the courts narrowly construe consumers to mean only those persons specifically intended to be protected by licensing law's terms.
The legislative purpose behind Westchester's Administrative Code is set forth as follows:
"that because of the increase in complaints by residential dwellers in the County of Westchester about abuses on the part of home improvement contractors, it has become desirable to safeguard and protect such residents by regulating the home improvement, remodeling and repair business and by licensing persons engaged in such business."
(Westchester's Administrative Code § 863.311). Given this legislative purpose, courts have interpreted these licensing laws as constituting "a consumer-oriented policy specifically enacted to protect tenants and home owners against abuses and fraudulent practices by home improvement contractors." ( Matter of Migdal Plumbing Heating Corp. and Dakar Dev., Inc., 232 AD2d 62, 65-66, app. denied, 91 NY2d 808). And as a result of the legislative purpose, courts have denied motions to dismiss where the consumers involved do not fall within the intended class of persons sought to be protected from fraudulent practices by home improvement contractors ( e.g., real estate developers, commercial property owners and general contractors).
For example, in Migdal Plumbing, supra, the Court explained that CPLR Rule 3015(e) bars an unlicensed contractor from maintaining an action against a consumer, and that a consumer, while undefined in the statute, should be construed to mean residential tenant or owner in a residence. ( Migdal Plumbing Heating Corp., supra, 232 AD2d at 66). The Court also cited with approval two other cases which interpreted consumer to mean that "'the person seeking to invoke the license requirements . . . must actually reside in the dwelling unit in which the work is to be performed." (Id. at 65-66; quoting Jack A. Corocan Marble Co. v. Clark Constr. Corp., 155 Misc 2d 49, 51; Ayres v. Dunhill Interiors, 138 AD2d 303). In that case, the court denied a real estate developer's petition to vacate an arbitration award that had been awarded to a contractor and the filed mechanic's lien because it was undisputed that defendant (as a real estate developer) was not a residential tenant or owner in a residence and, therefore, a real estate developer is not "encompassed among the protected class of consumers envisaged by CPLR 3015(e). . . ." ( Migdal, 232 AD2d at 66).
In Matter of Kuchar v. Baker, 261 AD2d 401, a petition was brought to confirm an arbitration award concerning an agreement entered into between Baker and Kuchar, where Kuchar (doing business as G.M. Construction) was to perform rehabilitation work involving a building in Brooklyn, New York. In that case, at the time the parties entered into the agreement December 15, 1995 Baker did not hold a deed to the property. Subsequently, on February 13, 1996, Baker obtained a deed to the building in question and the rehabilitation work commenced in March 1996. However, the Court denied the motion to vacate the arbitration award because Kuchar had alleged that Baker "was neither an owner of the premises at the time the agreement was entered into . . . nor a resident of the premises at the time the work was performed." ( Matter of Kuchar v. Baker, 261 AD2d 402, 403).
Here, Westchester's Administrative Code requires that a contractor involved in the home improvement business be licensed. And a home improvement business is defined as a business of providing for a profit a home improvement to an owner an owner being a homeowner, tenant or other residential dweller who "contracts for a home improvement." Here, either simultaneously with or the day after the parties entered into the bathroom renovation contract, defendant entered into the Residential Contract of Sale concerning the residence. (Chandler Aff, at Exhibit E). Although the Residential Contract of Sale was executed, title had not passed. Thus, at the time the parties executed the bathroom renovation contract, plaintiff was not engaged in the home improvement business as defined by Westchester's Administrative Code insofar as he was not offering his services to an owner as defined by Westchester's Administrative Code namely a "homeowner, tenant or residential dweller". Defendant argues that as equitable owner of the residence, the Court should find that he falls within the definition of homeowner under Westchester's Administrative Code. However, defendant has not provided the Court with caselaw to support that the equitable owner as well as the legal owner should both be construed to be homeowners under the definition of owner found in Westchester's Administrative Code. Furthermore, simply by being a contract vendee, there was no guarantee that title to the residence would necessarily pass to defendant. There were various contingencies contained in the Residential Contract of Sale such that if certain conditions did not occur, defendant could have terminated the Residential Contract of Sale. And given that the circumstances in this case are not unusual insofar as it is likely that such side deals to residential purchases occur on a regular basis ( i.e., that the seller offers to remedy deficiencies found in the home and the parties agree that the seller should be paid for his efforts), the Court declines to adopt such an expansive interpretation of the term owner beyond that which is plainly defined in the licensing law, to include situations such as the one present in the instant action.
Moreover, defendant could have defaulted and plaintiff's only remedy would have been retaining the down payment defendant paid pursuant to the Residential Contract of Sale.
Finally, even if defendant had convinced the Court that an equitable owner should be deemed the homeowner for the purposes of Westchester's Administrative Code, plaintiff has raised a question of fact concerning whether he merely facilitated the bathroom renovations on behalf of defendant by passing the costs incurred by the other contractors hired onto defendant. Thus, while defendant disputes plaintiff's characterization, arguing that plaintiff performed the renovations and that the price of the bathroom renovation contract necessarily included a profit, plaintiff's factual assertions would have impacted defendant's defense that plaintiff is barred from recovery as a result of his unlicensed status, since Westchester's Administrative Code specifically provides that the requirement for a license only applies to contractors engaged in a home improvement business for a profit. (See, e.g., Roth Painting Co. v. Fishman, 175 Misc 2d 525).
Defendant's Motion to Dismiss For Failure to Timely File The Affidavit of Service
Defendant's motion to dismiss on the ground that the Affidavit of Service was not timely filed in this action pursuant to CPLR § 308(2) is denied. In this case, it is undisputed that the Affidavit of Service was filed 7 days late in contravention of the provisions of CPLR § 308(2) requiring that the Affidavit of Service be filed within 20 days of the service. Defendant does not assert that any prejudice has resulted from this procedural irregularity.
In this regard, defendant's reliance on Roth v. Syracuse Housing Authority, 2002 WL 31962630 is misplaced. In that case plaintiff was under a six-month statute of limitations to effect service on defendants based upon a termination of a prior action pursuant to CPLR § 205(a). Because plaintiff used substituted service on the last day to effect service pursuant to CPRL § 205(a), service was not complete until 10 days later pursuant to CPLR § 308(2) and therefore, plaintiff failed to effect service within the required statute of limitations.
Based on CPLR provisions and caselaw, this Court is empowered to correct such a de minimus deficiency by deeming the Affidavit of Service filed nunc pro tunc. (See, e.g., Bell v. Bell, Kalnick, Klee Green, 246 AD2d 442; Paracha v. County of Nassau, 228 AD2d 422; Weininger v. Sassower, 204 AD2d 715; CPLR § 308; CPLR § 2004; see also NY Uniform Dist. Court Act § 411; NY Uniform Just. Ct. Act § 411 and NY City Civ. Ct. Act § 411; Pierno v. Adames, 179 Misc 2d 381). Therefore, defendant's motion is denied and the Court grants plaintiff's cross-motion to the extent that plaintiff's proof of service is deemed timely filed nunc pro tunc. The Court further orders that the time for defendant to answer is extended to 30 days from the date of service of a copy of this order with Notice of Entry with a copy of the Summons and Complaint.
Defendant's Motion to Dismiss Based on Prior Pending Action
Defendant also seeks the dismissal of this action pursuant to CPLR Rule 3211(a)(4) (prior pending action) because this action was filed one day after defendant filed his separate action against plaintiff and plaintiff's wife. That action is based upon plaintiff's alleged failure to properly perform under the bathroom renovation contract, and upon plaintiff's alleged fraudulent misrepresentations made to defendant to induce him to purchase the residence.
CPLR Rule 3211(a)(4) provides, in pertinent part:
"A party may move for judgment dismissing one or more causes of action asserted against him on the ground that . . . there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires. . . ."
(CPLR Rule 3211(a)(4)). It is the movant's burden to show that his other action was commenced first. ( Reckson Assoc. Realty Corp. v. Blasland, Bouck Lee, Inc., 230 AD2d 723, 725). To determine the priority in the commencement of the actions, courts hold that "it is clear that, with the passage of the 1992 amendments to CPLR 304 providing for the commencement of actions by filing the pleadings with the clerk of the court (L 1992, c. 216, § 4), the timeliness of an action is to be measured by the date of filing (CPLR 203[c][1])." ( White Light Prods., Inc. v. On the Scene Prods., Inc., 231 AD2d 90, 96; see also Reckson Assoc. Realty Corp., supra).
In opposition to defendant's motion, plaintiff urges the Court to either dismiss defendant's separately filed action or to consolidate the actions. Plaintiff argues that justice would not be served if this Court were to dismiss this action in favor of the action filed by defendant because:
"[w]hile this second action was filed a day prior to the instant one, a courtesy copy of the instant action was mailed to the defendant a week prior, on March 31, 2004. . . . The defendant was aware that the instant action was in the process of being filed, but instead rushed to file his own duplicative action. As such, justice is not served by dismissing the instant action, rewarding the defendant's race to the courthouse to file his own action after receiving the courtesy copy of the instant action. Despite the allegations of the defendant, it is he, and not the Plaintiff that has caused the duplicative actions to come into being."
(Plaintiff's Memorandum of Law in Opposition at 5-6).
In his reply, defendant contends that his action is not duplicative since defendant's "causes of action, which are substantial and wholly unrelated to [plaintiff's] home improvement claims, are set forth once in the [defendant's] action. They are not duplicated in the [plaintiff's] Action." (Reply Memorandum of Law at 6). Defendant's other argument is that:
"[Plaintiff] also attempts to 'muddy the waters' by contending that [defendant] intentionally raced to the courthouse to file his action in advance of [plaintiff]. This too is false and proven so by [plaintiff's] own submission. [Defendant] had verified his Supreme Court complaint in advance of receiving [plaintiff's] attorney's letter dated March 31, 2004. . . . The March 31st letter enclosed a complaint (with a County Court caption) concerning [plaintiff's] home improvement causes of action. The letter stated that the complaint had already been filed. [Defendant], believing the letter, did not race to file his complaint. . . . He filed it several days later on April 7, 2004. Only later did [defendant] discover that [plaintiff's] action was not filed prior to March 31st, and that it was filed on April 8th, one day after [defendant] filed his action. . . .
The only party engaging in gamesmanship is [plaintiff]. [Plaintiff], with his causes of action in place in the [plaintiff's] Action, consciously chose to duplicate those causes of action by asserting them as counterclaims in the [defendant's] Action. [Plaintiff] is the only party who has duplicative claims in play, for the sole purpose of increasing [defendant's] costs defending against two sets of claims instead of one. The Court is well within its discretion to dismiss the [plaintiff's] Action (in which [plaintiff] also now seeks nunc pro tunc relief to cure a filing defect) and should exercise such discretion."
(Reply Memorandum of Law at 6-7).
Defendant's arguments are disingenuous. To begin with, it is only because defendant filed the instant motion to dismiss that defendant has not yet asserted the claims he asserted in his separate action as counterclaims in this action (and possibly a third party complaint against plaintiff's wife). If defendant loses this motion, he will likely assert these claims as counterclaims and thereby duplicate the claims he has set forth in his separate action. Furthermore, it was entirely proper for plaintiff to duplicate the claims he has asserted against defendant in this action as counterclaims in defendant's separate action.
The Court is also not impressed with defendant's argument that the evidence is clear that he did not race to the courthouse based upon the fact that he had already verified the complaint in his action prior to his receipt of plaintiff's courtesy copy of the Summons and Complaint, and based upon the fact that he waited several days after receiving the courtesy copy (which he understood had already been filed) before filing his own action. The Court suspects that the parties had been discussing their dispute for some time and both knew that the other was likely to file suit based upon their failure to resolve the dispute amicably. Thus, both were likely drafting their respective complaints simultaneously. Nevertheless, it was defendant who received notice that plaintiff had initiated his lawsuit first and rather than answering that lawsuit and asserting the claims he has asserted in his separate action as counterclaims in this action ( i.e., plaintiff's alleged misrepresentations in the sale of the residence to defendant and plaintiff's allege failure to properly perform under the bathroom renovation contract), defendant chose to initiate another action in the same Courthouse. It is incredible to the Court that defendant can seriously contend that it is plaintiff who has created duplicative litigation by asserting counterclaims to defendant's action when it was defendant who filed an action arising out of the same transaction and was on notice of the other action prior to filing his action. This is not a situation in which parties have initiated lawsuits in different venues in an effort to obtain an advantage with regard to the forum selected. Here, both suits have been filed in the Supreme Court of the State of New York, Westchester County, so the only possible purpose for defendant's lawsuit is that defendant seeks to gain some advantage by being a plaintiff rather than being relegated to a defendant. However, the Court will not reward defendant for his actions by dismissing plaintiff's action, especially in a situation such as this one where both actions are pending in the same Court and at an appropriate time, this Court may order either a joint trial of these actions or that the actions be consolidated for purposes of trial.
Because defendant's separate action adds plaintiff's wife as a defendant, it would appear that if defendant wanted to pursue his claims against plaintiff's wife in this action, he would have to institute a third party action against her as a part of this action.
Specifically, defendant claims that plaintiff misrepresented that (1) "[t]he basement was dry, and there had never been a problem with water leaking into the basement"; (2) "[t]he septic system was regularly maintained and cleaned, and was in proper working condition"; (3) "[t]here had never been a problem with termites or other pests in the house"; and (4) "[t]he pool cover (which was folded up and not currently in use) was in working condition and should be good for at least another year." (Verified Complaint of Kenneth Chandler at ¶ 6). The viability of some (if not all) of these claims is clearly undermined by the specific disclaimer found in the Residential Contract of Sale which provides that "[p]urchaser is aware of the physical condition and state of repair of the Premises . . . based on Purchaser's own inspection and investigation thereof, and that Purchaser is entering into this contract based solely upon such inspection and investigation and not upon any information, . . . statements or representations, written or oral, as to the physical condition, state of repair, . . . or any other matter related to the Premises . . . given or made by Seller." (See Chandler Aff. at Exhibit E).
There are other possible motivations for defendant's separate action. For example, it is likely that defendant filed his separate action based upon his confidence that he would be successful in having this action dismissed due to plaintiff's lack of a home improvement license.
As noted by one court: "[t]he court has broad discretion in considering whether to dismiss an action on the grounds that another action is pending between the parties for the same cause of action. See e.g., Whitney v. Whitney, 57 NY2d 731 (1982), Colon v. Gold, 166 AD2d 406 (2nd Dept. 1990). Further, under CPLR 3211(a)(4), if 'there is another action pending between the same parties for the same causes of action, the court need not dismiss upon this ground but may make such order as justice requires'. . . . The court has a great deal of latitude in directing consolidation. Mideal Homes Corp. v. L C Concrete Work, Inc., 90 AD2d 789 (2nd Dept. 1982). Consolidation is appropriate, as it will avoid unnecessary duplication of trials, save unnecessary costs and prevent the possibility of incongruous decisions based on the same facts. Chinatown Apartments, Inc. v. New York City Transit Authority, 100 AD2d 824 (3rd Dept. 1984)." ( Zyskind v. Hebrew Academy of the Five Towns Rockaway, NYLJ, November 3, 1992, NYLJ page 35, col. 3). Indeed, many courts have ordered consolidation, especially in cases where the actions were filed nearly simultaneously. (See Club Italia, Inc. v. Italian Fashion Trading, Inc., 268 AD2d 219 [court consolidated "two nearly identical cases, one brought the day before the other . . . and each containing counterclaims identical to the other's respective complaint"]; Reckson Assoc. Realty Corp. v. Blasland, Bouck Lee, Inc., 230 AD2d 723).
In this case, it is undisputed that unbeknownst to plaintiff, plaintiff filed his action one day after defendant had filed his separate action. But "[p]riority in time is not always controlling, however. Exceptions to the general application of this defense are recognized where competing actions have been commenced 'reasonably close in time' to one another ( see, Flintkote Co. v. Am. Mut. Liab. Ins. Co., 103 AD2d 501, 505, 480 N.Y.S.2d 742, aff'd, 67 NY2d 857, 501 N.Y.S.2d 662, 492 N.E.2d 790). Virtually every exception to the first-in-time rule involves competing litigation commenced within days or even hours of each other. (See, e.g., Seaboard Sur. Co. v. Gillette Co., 75 AD2d 525, 426 N.Y.S.2d 762 ["almost simultaneously"]; Hertz Corp. v. Luken, 126 AD2d 446, 550, 510 N.Y.S.2d 590 ["virtually simultaneous"]." ( National Union Fire Ins. Co. v. Jordache Enter., Inc., 205 AD2d 341, 343).
Because for all intents and purposes there was a simultaneous filing of actions, the Court denies defendant's motion to dismiss based upon a prior pending action. The Court also denies plaintiff's application to dismiss defendant's action. With regard to plaintiff's other request that the actions be consolidated, the Court grants plaintiff's application only to the extent that the actions should be joined for discovery purposes. The motion to consolidate the actions for trial is denied, without prejudice, with leave for either party to renew the application at the conclusion of discovery.
Based upon the foregoing, it is hereby
ORDERED, that defendant's motion to dismiss the action is hereby denied in all respects; and it is further
ORDERED, that plaintiff's cross-motion for an order pursuant to CPLR § 2001 deeming the untimely proof of service of plaintiff's summons and complaint filed nunc pro tunc is granted and the time for defendant to answer is extended to 30 days from the date of service of a copy of this order with Notice of Entry with a copy of the Summons and Complaint; and it is further
ORDERED, that plaintiff's cross-motion to consolidate the actions filed under Index Nos. 04974/04 and 05021/04 is granted only to the extent that the actions should be joined for discovery purposes. The motion to consolidate the actions for trial is denied, without prejudice, with leave for either party to renew the application at the conclusion of discovery. Counsel are directed to appear for a preliminary conference that has been scheduled for 10:00 a.m. on November 9, 2004, Courtroom 1403 for the purposes of scheduling the joint discovery to be had in these actions.
The foregoing constitutes the Opinion, Decision Order of the Court.