Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion of the defendant, SP+ Corporation (hereinafter SP Corp.), filed on December 18, 2023, under motion sequence one, for an order pursuant to CPLR 602 (a) and 603, consolidating the instant action (hereinafter Action 1) with the action entitled Pacific indemnity Company a/s/o Elena Yurtchenko v. SP+ Corporation and Oceana West Garage, Index No. 528939/2023 (hereinafter Action 2), pending in the county of Kings. The motion is unopposed. Notice of Motion Affirmation in Support Exhibits A-D Affidavit of Service by Electronic Filing DECISION & ORDER BACKGROUND On December 17, 2020, Janos Sztojka and Elena Yurtchenko (hereinafter plaintiffs) commenced Action 1, to recover monetary damages against SP Corp. and Oceana West Garage (collectively, defendants) by filing a summons and verified complaint with the Kings County Clerk’s office. The summons and verified complaint in Action 1 alleged the following salient facts. On September 5, 2020, plaintiffs parked their automobile, a 2013 Rolls Royce Ghost, in the defendants’ parking garage located at 90 Oceana Drive West, commonly known as the Ocean Drive West Parking Garage. Then, they surrendered the keys to the parking garage attendant and left. On September 9, 2020, the plaintiffs returned to defendants’ parking garage and witnessed rats running from their vehicle. Plaintiffs opened the hood and observed a large number of rats inside the engine that caused extensive damage to the vehicle’s wire system, hoses, and other parts. Plaintiffs further claim that as a direct and proximate result of the rat infestation in the defendants’ parking garage, the vehicle was extensively damaged and rendered nonoperational necessitating costly repairs. Plaintiffs alleged that the damages to their vehicle prevented them from fully performing their business obligations while their vehicle was being repaired, resulting in loss of earnings and other damages in excess of $54,543.76. On March 5, 2021, defendant SP Corp. interposed a verified answer with affirmative defenses. On October 6, 2023, plaintiff, Pacific Indemnity Company as subrogee of Elena Yurtchenko (hereinafter, insurance company, also plaintiff in Action 2), commenced Action 2 to recover for property damages, against SP Corp. and Oceana West Garage (collectively, defendants). The summons and complaint in Action 2 alleged the following salient facts. Plaintiff in Action 2 was the first party property insurance carrier and provided coverage to the insured, Elena Yurtchenko, for a 2013 Rolls Royce Model Ghost. On October 9, 2020, insured Elena Yurtchenko, dropped off her vehicle in the parking garage maintained and/or owned by defendants. On the same day, the vehicle sustained damages from rats while in the possession of defendants. Plaintiff in Action 2 paid its insured in excess of $63,000.00 for the property damages sustained to her vehicle. As a result, plaintiff in Action 2, was damaged in the sum of $63,000.00. On December 12, 2023, the defendant SP Corp. interposed an answer with affirmative defenses and crossclaims against co-defendant Oceana West Garage. MOTION PAPERS Defendant SP Corp.’s motion papers consist of a notice of motion, an affirmation in support, exhibits A through D, and an affidavit of service of the motion and affirmation in support by electronic filing. Exhibit A, is a copy of the summons with notice and verified complaint in Action 1, dated December 14, 2020; Exhibit B contains an answer to the complaint in Action 1, by Defendant, SP Corp., which is verified by its attorneys, dated March 5, 2021; Exhibit C is a copy of the summons and complaint in Action 2, dated October 6, 2023; Exhibit D contains an answer to the complaint in Action 2, by the defendant SP Corp., which is verified by its attorneys, dated December 12, 2023. LAW AND APPLICATION CPLR 602 provides as follows: Consolidation. (a) Generally. When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. (b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district, or justice court in the county and consolidate it or have it tried together with that in the county court. Where common questions of law or fact exist, a motion to consolidate or for joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by a party opposing the motion (Calle v. 2118 Flatbush Ave. Realty, LLC, 209 AD3d 961, 963 [2d Dept 2022], quoting Disa Realty, Inc. v. Rao, 198 AD3d 869, 871 [2d Dept 2021]). The trial court has sound discretion in determining whether to order consolidation (Hershfeld v. JM Woodworth Risk Retention Group, Inc., 164 AD3d 1423, 1424 [2d Dept 2018], citing CPLR 602[a]). In exercising that discretion, the controlling principle is that interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact (see Lombardi, 164 AD3d at 668, citing Cusumano v. Cusumano, 114 AD3d 633, 633-634 [2d Dept 2014]. Consolidation should not be ordered, however, if to do so would prejudice a substantial right (Amcan Holdings, Inc. v. Torys, LLP, 32 AD3d 337,339 [1st Dept 2006]; see also Beerman v. Morhaim, 17 AD3d 302,303 [2d Dept 2005]). Here, the summons and complaint in Action 1 and Action 2, both allege an incident involving the same party defendants and plaintiffs. Both allege that plaintiff in Action 1, also known as the subrogor of plaintiff in Action 2, parked her automobile, a 2013 Rolls Royce Model Ghost, in the defendants’ parking garage located at 90 Oceana Drive West, commonly known as the Ocean Drive West Parking Garage, and that the motor vehicle sustained property damages as a result of a rat infestation in the premises. Both actions occurred at the same location and involve the same defendants, and similar allegations regarding the defendants’ negligence. However, both actions do not share the same date of the incident. According to the summons and verified complaint in action 1, the plaintiffs left their vehicle at the parking garage on September 5, 2020 and on September 9, 2020, they returned to find rats in and coming out of the vehicle. The summons and complaint in action 2, alleged that on or about October 9, 2020, insured Elena Yurtchenko (also plaintiff in action 1), dropped off her vehicle in the parking garage and that on or about October 9, 2020, the insured’s vehicle sustained damages. Inasmuch as the two complaints involve two separate incidents occurring over a month apart, under these circumstances consolidation is not appropriate. CONCLUSION The motion by defendant SP Corporation for an order pursuant to CPLR 602 (a) to consolidate action 2 bearing index number 528939/2023 into action 1, bearing index number 525287/2020 is denied. The foregoing constitutes the decision and order of this Court. *Researched and drafted with the assistance of Melissa Esther Canteño Cardenas, a graduate of John Jay College of Criminal Justice 2021. Dated: March 6, 2024
