In an August 1, 2011, decision by Justice Demarest, the court denied defendant-subcontractor’s motion to dismiss based on a prior pending action and granted plaintiff-contractor’s cross-motion to consolidate. Plaintiff, an excavation contractor, hired defendant to dispose of material resulting from its excavation of a construction site. Plaintiff terminated defendant “for cause” and sued for breach of contract in Kings County via summons with notice in August 2010. On January 31, 2011, defendant appeared and demanded a complaint from plaintiff. The next day, defendant sued plaintiff for wrongful termination in the same court via summons and complaint. In response to defendant’s demand, plaintiff filed its complaint on February 23, 2011. Defendant argued that plaintiff’s action should be dismissed because its complaint was filed before plaintiff’s complaint. Both parties agreed that the two actions arose out of the same facts, involved the same parties, and required the court to make similar findings. The court in its discretion, however, denied defendant’s motion “as [plaintiff’s] action is already pending before this court and [defendant’s] action was commenced later and has not yet been assigned to any judge.” Because the actions would require determination of common questions of law and fact, the court granted plaintiff’s motion to consolidate, but in an effort to “preserve the integrity of the two actions,” did so “only to the extent of joining the actions for the purposes of completing discovery and trial.”

Laquila Group v Pure Earth Transp. & Disposal, Inc., Sup Ct, Kings County, August 1, 2011, Demarest, J., Index No. 20018/2010