Decision and Order The Plaintiff has moved seeking to dismiss the counterclaims pursuant to CPLR §3211(a)(4) on the grounds there is another action pending. The defendants have cross-moved seeking to consolidate this action with the related action, Weber v. Barnett, Index Number 508333/2022. The motions have been opposed respectively. Papers have been submitted by the parties and arguments held. After reviewing all the arguments this court now makes the following determination. As recorded in a companion case, Horsepower Electric and Maintenance Corp., is equally owned by plaintiff’s Yoel Weber., Yoel Leonorovitz and an entity called HP Stock LLC pursuant to an operating agreement dated October 28, 2014. Gary Barnett is the managing member of HP Stock LLC. In June 2015 BankUnited loaned Horsepower ten million dollars and the plaintiff guaranteed over six million dollars of that loan. The complaint in this action asserts that on May 15, 2023, the plaintiff paid $3,950,000 to BankUnited pursuant to the guaranty. Thereafter Barnett sought reimbursement from Horsepower pursuant to the shareholder agreement authorizing such reimbursement and such request was denied precipitating this lawsuit. The plaintiff has asserted causes of action, essentially, for breaching the shareholder agreement by refusing to reimburse the plaintiff. The defendants answered the complaint and have asserted counterclaims that are very similar to the causes of action in the companion case. Specifically, the defendants assert that the plaintiff’s company, the additional defendant, Extell Development Company hired Horsepower to provide electrical work and the plaintiff through his ownership of Extell was required to pay Horsepower. The counterclaims assert that Extell failed to pay Horsepower its fees and allege breaches of fiduciary duty, breach of contract, unjust enrichment, quantum meruit, tortious interference with contract and attorney’s fees. The plaintiff seeks to dismiss the counterclaims on the grounds the allegations contained within them are the same claims that comprise the companion action and they should be asserted there. Significantly, the plaintiff distinguishes the claims he has filed in this action arguing they comprise a “discrete and clear cut dispute over Defendants’ unconditional reimbursement obligations” (see, Affirmation in Support, 3 [NYSCEF Doc. No. 13]) which are wholly unrelated to the claims of the companion action. The defendants argue the two actions should be consolidated and heard as one lawsuit since the deal with the same parties and transactions. Conclusions of Law It is well settled that when two cases represent common questions of law or fact then there should be a consolidation (Moses v. B & E Lorge Familt Trust, 147 AD3d 1043, 48 NYS3d 427 [2d Dept., 2017]). A party objecting to the consolidation has the burden of demonstrating prejudice which harms a substantial right (Oboku v. New York City Transit Authority, 141 AD3d 708, 35 NYS3d 710 [2d Dept., 2016]). The plaintiff in this action opposes consolidation on the grounds that this lawsuit is more narrow and only focuses upon the reimbursement of money paid pursuant to a guaranty. Thus, the “wholly independent and unambiguous obligation” (Memorandum in Reply, page 7 [NYSCEF Doc. NO. 28]) that is the subject of this action should not be joined with a far more complicated and discovery-driven lawsuit. However, the request for any reimbursement is part and parcel of the overall dispute between the parties. The very reason the defendants have refused to reimburse the plaintiff for the guaranty is precisely because they claim the plaintiff owes them money. Thus, the defendants argue that “in the First Action, the Horsepower Parties asserted Claims for more than $14 million for payments that the Extell Parties failed to make in connection with work that Horsepower indisputably performed for Extell. In this action, the Extell Parties have made claims that they are entitled to reimbursement for payments allegedly made to BankUnited in connection with a line of credit given to Horsepower” (see, Affirmation in Opposition, 21 [NYSCEF Doc. No. 24]). Indeed, evidence has been presented that Horsepower’s claims regarding Extell are interwoven with the plaintiff’s payment to BankUnited. Thus, on April 19, 2023 a representative of Extell sent an email to a representative of Horsepower that acknowledged that the plaintiff’s payment to BankUnited would reduce the amount Extell owed Horsepower (see, Email, dated April 19, 2023 sent at 3:20 PM (NYSCEF Doc. No. 25]). Therefore, concerning the litigation between the parties there is nothing between them that can be characterized as “discreet” which can be resolved in isolation. There can be no piecemeal resolution of any of the claims between the parties in this case. To be sure, a claim that for example the plaintiff spilled something upon one of the defendants and must pay the cleaning bill would perhaps warrant a resolution without including that claim within this larger lawsuit. An argument could be made that there too the court should indulge any set-off and apply it to the larger action. However, that would be difficult considering other than money there are no issues of commonality. That would surely raise the argument, addressed presently, that the differing stages of discovery demands a denial of any consolidation request to serve as a set-off. In these cases, however, the issues regarding the guaranty are not so unrelated as to demand the actions remain separated. They concern the same parties, the same shareholder agreement and the same general dispute abut Extell and Horsepower. In addition, while it is true that generally consolidation may be denied where the two actions are at different stages (see, Abrams v. Port Authority Trans-Hudson Corp., 1 AD3d 118, 766 NYS2d 429 [1st Dept., 2003]) no such basis exists in this instance to deny consolidation. While the companion action has already been active for some time and this action has only recently been filed they concern the same events, namely the amount Extell owes, if any, and whether Extell is entitled to any set-offs based upon the plaintiff’s payments. They are not differing issues that can be addressed in different proceedings and therefore the mere fact discovery has already begun in the companion action does not bar consolidation. Therefore, based on the foregoing the motion seeking to consolidate this action with the companion action is granted. The motion seeking to dismiss the counterclaims on the grounds they are preserved in the companion action is also granted. So ordered. Dated: January 2, 2024
