5Co.'0decisions.courts.state.ny.us/10jd/nassau/decisions/... · Ferrandino commenced Action NO. 2 in Nassau County on August 11, 2008. In this suit, Ferrandino sued Utica and Wheaton

INDEXNo. 14338-

SUPREME COURT - STATE OF NEW YORKIAS TERM PART 11 NASSAU COUNTY

PRESENT:HONORABLE LEONARD B. AUSTIN

Justice

FERRANDINO & SON, INC.

Plaintiff,

- against -

WHEATON BUILDERS, INC. , LLC andHE2 PROJECT DEVELOPMENT, LLC.

Defendants,

WHEATON BUILDERS INC. , LLC

Third Part Plaintiff,

- against -

UTICA MUTUAL INSURANCECOMPANY

Third Part Defendant.

Motion RID:1-05-Submission Date: 1-12-Motion Sequence No. : 002/ MOT D

COUNSEL FOR PLAINTIFFGathman & Bennett, LLP191 New York AvenueHuntington, New York 11743

COUNSEL FOR DEFENDANT/3rdPARTY PLAINTIFF(Wheaton Builders LLC)Herrick, Feinstein LLP2 Park AvenueNew York, New York 10016

(Utica Mutual Insurance Comp.any)Westerman, Hamiltaon , Sheehy,Aydelott & Keenan , LLPGarden City Center100 Quentin Roosevelt Boulevard,

Suite 502Garden City, New York 11530

(HE2 Project Development)Furman;-Korrifeld & Brennan , LLP545 Fifth Avenue, Suite 401New York, New York 10017

5Co.'0

FERRANDINO & SON , INC. v. WHEATON BUILDERS , INC.

Index No. 14338-ORDER

The following papers were read on Plaintiff's motion for an order of consolidationor joint trial:

Notice of Motion dated December 22 , 2008

Affirmation of John C. Bennett, Esq. , dated December 22 2008

Affidavit of Peter Ferrandino sworn to sworn to December 23, 2008Affirmation of Michael F. Kuzow! Esq. , dated January 5 , 2009

Reply Affirmation of John C. Bennett , Esq. , dated January 9 , 2009

Plaintiff, Ferrandino & Son , Inc. ("Ferrandino ), moves pursuant to CPLR 602 for

an order consolidating or directing a joint trial of the following actions: (1) Ferrandino &

Son, Inc. v. Utica Mutual Insurance Company and Wheaton Builders, Inc. , LLC (Nassau

County Index No. 14887/08) ("Action No. ) and (2) Utica Mutua/Insurance Company

v. Ferrandino Son Inc. , Ferrandino Son Environmental, Inc. , KAF Realty Inc.

Ferrandino &$00 Realty Inc. , Giavanna Realty Inc. , Peter Ferrandino and Karen

Ferrandino (Oneida County Index No. CA2008/2912) ("Action No. ) with this action

("Action No. ), and for a stay of the proceedings in Action NO. 3 pending further order

of this Court.

BACKGROUND

On February 7 , 2007 , Wheaton Builders Inc. , LLC ("Wheaton ), as owner , and

Ferrandino , as contractor, entered into an agreement ("Contract" for Ferrandino

provide superstructure concrete for a new condominium complex to be located at 410

Avenue , Brooklyn , New York ("Project"). The contract amount was $2 523 000.

Ferrandino was to install and construct masonry floors , columns and stairways for two

14-story condominium buildings. HE2 Project Development , LLC ("HE2" ) was the


Index No. 14338-

construction manager for the Project.

The Project required the issuance of a performance bond and a payment bond in

the sum of $2 523 000. A subcontract performance bond , Bond No. SU3980598

Bond"), was issued by Utica Mutual Insurance ("Utica ), as surety, to Ferrandino in

March 2007. A subcontract payment bond, bearing the same bond number and amount

as the Bond , was issued as well.

Prior to the issurance of the bonds , on May 5, 2006, Ferrandino , Ferrandino &

Son Environmental , Inc. ("Environmental"), KAF Realty ("KAF"), Ferrandino & Son

Realty ("Realty ), Giavanna Realty Inc. ("Giavanna ), Peter Ferrandino ("Peter ) and

Karen Ferrandino ("Karen ), as indemnitors , and Utica had entered into a general

agreement of indemnity. According to paragraph two of the Indemnity Agreement , the

, '" ..'

,. I I!q;indemnitors agreed to indemnify and hold Utica harmless from each and every claim

paid by Utica as a consequence of having executed a bond. A similar agreement

Indemnity Agreement") with identical indemnification language was previously

executed on September 9, 2005 by Ferrandino , Environmental , KAF , Realty, Giavanna

Peter and Karen.

On March 21 2008 , Wheaton notified Utica and Ferrandino that iLwas

considering defaulting Ferrandino and requested a meeting to resolve the matter. A

meeting was held in April 2008 and Ferrandino continued performing pursuant to the

Contract. Prior to the conference , Utica retained Beacon Consulting Group Inc.

Beacon ) to investigate Wheaton s claim that Ferrandino s work was defective and


Index No. 14338-

delayed. When the meeting occurred between Wheaton , Utica and Ferrandino on April

, 2008 , Wheaton opted not to default Ferrandino.

By letter, dated June 25 , 2008 , Wheaton terminated Ferrandino for cause

effective July 2 , 2008 pursuant to 911.2 of the Contract. Wheaton stated that after

review of Ferrandino s work and in concurrence with the project architect and structural

engineer, it believed that Ferrandino was incapable of performing its work in accordance

with the Contract. As examples of the basis for its decision , Wheaton cited to, inter alia

Ferrandino s notice , dated May 15 , 2008, that it would not complete its work in

compliance with the project specifications , its failure to maintain the Project's progress

schedule , its failure to provide consistent quality workmanship, its failure to supply a

sufficient amount of properly skilled workers , its use of substandard and/or non-

specified materials , its violation of Exhibit F to the Contract which required compliance

with OSHA regulations and NYC Building Department Codes and its failure to pay its

subcontractors.

A copy of the termination letter was sent to Utica , as Ferrandino s surety. In the

termination letter, Wheaton made a demand upon Utica to complete the balance of

Ferrandino s work under the Bond. Utica, with Beacon s assistance, then conducted an

investigation of Wheaton s claim. Utica denied Wheaton s claim on August 25 , 2008

based on Ferrandino s assurances that Wheaton s claim lacked merit and Wheaton

failure to comply with the Bond' s notice provision.


Index No. 14338-

Action NO.

On August 1 , 2008 , Ferrandino commenced Action NO. 1 against Wheaton and

HE2 in Nassau County alleging breach of contract , account stated for $838 735,

damage to business reputation due to the termination , conspiracy and fraud. In Action

No. , Ferrandino alleges that Wheaton failed to provide timely access to the Project,

failed to tender payment due for labor performed and materials furnished , failed to allow

Ferandino to complete performance pursuant to the terms of the Contract and failed to

compensate it for accelerating job performance not yet due pursuant to the Contract.

Thereafter, Wheaton commenced a third-party action against Utica for its bad

faith breach of the surety performance and payment bonds and breach of the covenant

of good faith and fair dealing, in addition to asserting counterclaims against Ferrandino

for breach of contract. Wheaton alleges that Utica willfully and intentionally acted in bad

faith by misrepresenting to Wheaton that Ferrandino was able to complete its work, by

misrepresenting that it would pay the cost to complete Ferrandino s work and by failing

to conduct a proper investigation of Wheaton s claim under the Bond and denying

Wheaton s claim without a valid basis. Wheaton also seeks a declaration that the Bond

is in full force and effect, in addition to seeking consequential and punitive damages -

against Utica.

FERRANDINO & SON , INC. v. WHEATON BUILDERS, INC.Index No. 14338-

Action NO.

Ferrandino commenced Action NO. 2 in Nassau County on August 11 , 2008. In

this suit , Ferrandino sued Utica and Wheaton. Utica asserted a cross-claim against

Wheaton.

Ferrandino alleges that following Utica s investigation of the claims raised in

Wheaton s letter of termination , Ferrandino sent a letter, dated August 4 , 2008 , to Utica

demanding that it take no action on the Bond claim submitted by Wheaton due to

Wheaton s failure to fulfill certai conditions precedent prior to Utica s obligations

ripening. Ferrandino alleges that despite its demand letter, Utica "has declined to honor

the demand letter" and "has purported to conduct certain handling of the bond claim.

(Action No. , Complaint 12).

It is Ferrandino s position,.that, pursuant to Section 6. 1 of the Contract , all

timeframes delineated in its contract with Wheaton are to be of the. essence. Thus

Wheaton s approval of Ferrandino s payment application number 7 , dated May 21

2008 , for $328 000 on June 19, 2008 mandated payment by June 30, 2008. Thus

Wheaton s subsequent refusal to remit such payment in light of its termination letter

issued on July 3 , 2008 violates Section 4. 1 of the Contract which required progress

payments to be made on a monthly basis at 10% retainage to be held for an additional

15 days after completion of Ferrandino s work.

1 Ferrandino requested $400 000 in payment application number 7; howeverWheaton only approved payment of $328,000.


Index No. 14338-

Ferrandino asserts that the Bond requires that Wheaton establish the absence of

construction manager default" before the surety s obligations are triggered. Since

Wheaton did not pay Ferrandinq $328 000 on June 30 2008 in compliance with the

Contract, Ferrandino seeks a declaration that Wheaton , as construction manager , has

failed to comply with a condition precedent pursuant to the terms of the Bond; that Utica

owes no duty to act pursuant to the terms of the Bond and that Wheaton s failure to pay

pursuant to the Contract terms has discharged Utica from any obligations under the

Bond.

Utica cross-claimed against Wheaton for a declaration that Utica has been

discharged and relieved of its obligations under the Bond due to the acts and omissions

of Wheaton.

Utica asserts that after receiving a letter , dated March 21 2008 , from Wheaton

that it was considering defaulting Ferrandino, Utica attended a meeting in April 2008

with Ferrandino and Wheaton to resolve the issues raised in Wheaton s March 21 2008

correspondence. Subsequent to that meeting, Ferrandino continued to perform under

the Contract. Upon receiving Wheaton s June 25, 2008 termination letter, Utica

obtained a consultant to commence an investigation into Wheaton s claim and the cost

to finish the Contract. Utica alleges that, on July 16, 2008 , for the first time , Wheaton

agreed to pay Utica the balance of the Contract amount in accordance with the terms of

the Contract as required by Paragraph 3. 3 of the Bond.

FERRANDINO & SON , INC. v. WHEATON BUILDERS , INC.Index No. 14338-

By email , dated July 25 , 2008 , Wheaton advised Utica that it would deem Utica in

default on the Bond on July 28 , 2008. This email was sent only 10 days after Wheaton

tendered the Contract balance as required by Paragraph 3. 3 of the Bond and while

Utica was in the process of investigating Wheaton s claim. Utica alleges that three days

notice by email does not comply with paragraph 5 of the Bond which states that Utica

will only be considered to be in default ten days after it receives additional written notice

from Wheaton demanding that Utica perform its obligations under the Bond. Paragraph

10 of the Bond defines notice as written notice mailed or delivered to the address shown

on the signature page of the Bond.

Utica believes that , before it gave notice to Utica of its alleged default, Wheaton

entered into a contract with Rigid Concrete , of Belleville , New Jersey, on July 23 , 2008

to complete the remainder of Ferrandino s work , including the remediation of the

allegedly defective work completed by Ferrandino , and that Rigid actually commenced

performance of this work on July 18 , 2008. Thus , Utica asserts that Wheaton s entering

into a contract with Rigid to complete Ferrandino s work and its failure to provide proper

notice to Utica of its alleged default deprived Utica of its rights , remedies and options

under the Bond.

Action NO.

Utica commenced an action against Ferrandino , Environmental , KAF , Realty,

Giavanna , Peter and Karen ("Oneida County Defendants ) for specific performance of


the Indemnity Agreement and breach of contract. This action was filed on September

2008.

Utica seeks damages against the Oneida County Defendants for an alleged

breach of the Indemnity Agreement , dated September 9 , 2005. The complaint asserts

that under the Indemnity Agreement , the Oneida County Defendants were jointly and

severally obligated to indemnify Utica for all losses incurred by it as a result of its

suretyship of Ferrandino and that the Oneida County Defendants were obligated to

provide Utica with collateral security equal to the amount of any reserve established by

Utica relating to the claims brought under surety bonds issued on Ferrandino s behalf.

Utica asserts that the Bond it issued related to the Contract between Ferrandino

and Wheaton regarding work to be performed at the Project. The complaint notes that

Wheaton terminated the Contract and asserted a claim against Utica under the Bond.

Utica then established a reserve in the amount of $1 , 210 000 in connection with

Wheaton s claim and , on September 5 , 2008 , demanded a collateral security deposit

from the Oneida County Defendants for that amount and indemnification.

Utica alleges that , despite its demand , the Oneida County Defendants have

breached their obligations under the Indemnity Agreement by failing to provide a

collateral security deposit and by failing to indemnify Utica. It seeks an order directing

the Oneida County Defendants to comply with the collateral requirement of the

Indemnity Agreement and deposit $1 210 000 with Utica , in addition to an award for


damages , in an amount not less than $121 037. , relating to the failure of the Oneida

County Defendants to indemnify Utica.

Venue in Oneida County is based upon Utica s principal office located in New

Hartord , New York. All of the Oneida County Defendants are domiciled on Long Island.

The Oneida County Defendants answered the complaint and interposed

counterclaims. In their first counterclaim , they incorporate by reference the allegations

set forth in the complaint in Action NO. 1 in which Wheaton commenced a third-party

action against Utica and asserted counterclaims against Ferrandino. In its third-party

action , Wheaton makes allegations of negligence, bad faith and intentional conduct as

against Utica. The Oneida County Defendants assert that, in the event that Wheaton

proves its allegations , Ferrandino would be exposed to increased damages by the

actions of Utica and , thus , woulc; be entitled to indemnification and contribution from

. Utica.

With respect to the second counterclaim , the Oneida County Defendants allege

that , in April 2008 , Ferrandino , at Utica s recommendation , agreed to revise certain

schedules which had been set pursuant to the Contract. They allege that , if there was a

breach of the underlying revised schedule , such revision would constitute arevision to

the Contract. The Oneida County Defendants maintain that they were not aware of any

revision to the Contract and would not have consented to remain as guarantors. Thus

they maintain that they should be discharged from liability under the terms of the

Indemnity Agreement.


In the third counterclaim , the Oneida County Defendants allege that , in April

2008 , Utica advised Wheaton to not pay Ferrandino if Wheaton intended to declare a

default. Thereafter, despite previously approving a payment application from

Ferrandino , Wheaton defaulted Ferrandino and failed to pay Ferrandino on the

previously approved payment application. The Oneida County Defendants assert to the

extent that such act was predicated on the advice , suggestion or directive of Utica , an

unauthorized modification to the Bond , Indemnity Agreement and Contract occurred

without their consent which discharges them from liability under the Bond and Indemnity

Agreement to Utica.

In December 2008 , Utica moved for partial summary judgment in Action NO. 3 to

enforce the collateral security clause of the Indemnity Agreement and for a judgment in

the amount of $137 392. 56. Utica also seeks an Order dismissing the counterclaims

and affirmative defenses of the Oneida County Defendants and retaining jurisdiction in

Oneida County. Utica s motion has been adjourned by the Hon. Samuel D. Hester

Justice presiding, pending resolution of this motion.

This Motion

Ferrandino now moves for an-order directing consolidation , or a joint trial , of all

three actions and the transfer of Action NO. 3 to Nassau County. Ferrandino argues

that consolidation is proper since the counterclaims and affirmative defenses interposed

by the Oneida County Defendants in Action No. , which Utica seeks to dismiss in its

motion , relate to the question of whether Utica acted reasonably and in good faith


setting its reserve and in handling Wheaton s claim. In addition , Ferrandino maintains

that it bears upon whether there; has been an oral modification of the Indemnity

Agreement , whether Utica encouraged Wheaton to stop payments to Ferrandino which

would constitute an alteration to the Contract thereby discharging the Oneida County

Defendants of any further responsibility under the Bond and Indemnity Agreement and

whether Wheaton s acts rise to the level of construction manager default , which is the

subject of the litigation in Action NO.

Ferrandino argues that all three actions share common questions of law or fact.

Ferrandino asserts that the Bond at issue in Action Nos. 1 and 2 is directly related to

claims made by Utica in Action NO. 3. Most significantly, Ferrandino asserts that

whether Utica - - despite the language of the Bond concerning construction manager

default - - nevertheless directed Wheaton to not pay Ferrandino thereby creating such

a default. Ferrandino argues that , if construction manager default resulted from Utica

directive for Wheaton to stop paying Ferrandino , Ferrandino argues that the indemnitors

and the guarantors would be discharged from liabilty if Wheaton acted in reliance

Utica s directive. This would bear upon Utica s entitlement to attorney s fees or expert

consulting costs since such fees and costs may have been incurred as a result of

- --- -

Utica s advising Wheaton to breach the Contract. Ferrandino raises the question of

whether Utica acted in bad faith or was negligent in its involvement with the Project and

since the indemnification agreement between Ferrandino and Utica cannot be

interpreted to entitle Utica to indemnification for its own bad faith or negligence


consolidation or a joint trial is appropriate because all three matters are intertined.

In opposition to the motion , Utica argues that the Court should not consolidate

Action NO. 3 into the two Nassau County actions , Action Nos. 1 and 2 since there are no

common questions of law or fact. Utica asserts that it commenced Action NO. 3 to

compel the Oneida County Defendants as indemnitors to immediately deposit with Utica

210, 000 as collateral security since that is the amount of the reserve currently set by

Utica in response to Wheaton s claims. Utica notes that paragraph 3 of the Indemnity

Agreement requires this deposit to be held and utilized by Utica until Utica is discharged

by a court of competent jurisdiction of liability under the bonds. Utica also seeks a

money judgment representing the costs and expenses it has incurred and paid as a

result of its position as surety. It is Utica s position that the fees and costs it paid as a

result of Wheaton s default of Ferrandino have already been incurred and are not at

issue in either Action NO. 1 or 2.

Utica contrasts Action Nos. 1 and 2 with Action NO. 3 as cases pertaining to the

Contract and the Bond as opposed to involving the Indemnity Agreement. Utica states

that whether Wheaton was in default is immaterial to its right to indemnification under

the Indemnity Agreement.

Utica notes that in addition to the three actions discussed in this motion , two

actions were commenced in Kings County related to the Project under Index No.


32068/08 in which Utica is a thira-party defendant and under Index No. 26462/08

which Utica is named as a defendant. Utica questions why Ferrandino is not seeking to

consolidate the Kings County action concerning its mechanic s lien.

Moreover, Utica argues that consolidation and a joint trial will cause jury

confusion and prejudice Utica s right to a fair trial since Utica will be both defendant and

plaintiff, in addition to being aligned with Ferrandino of some issues and opposed to

Ferrandino on others , during the same trial.

In reply, Ferrandino maintains that, since all three actions arise out of the same

set of facts and circumstances and involve common questions of fact , judicial economy

requires that only one court preside over all three matters and that Utica has failed to

establish that it wil be substantially prejudiced by consolidation or a joint trial. It notes

that Utica h'as not been required to expend any funds to conclude the Project, in which

the concrete superstructure work was completed in October 2008, under the Bond or

required to pay any money under the Bond. Thus , Action No. 3 seeks recovery of the

reserve amount only in addition to and expert fees.

- - - . . .__.__.,

2 Utica provided the Court with index number 26462/08 as a related matter

related to the Project. That index matter is assigned to a matter entitled Petrina Rizzo v.Bay Ridge Medical Imaging Pc. It appears that the matter Utica is referring to is IndexNo. 26662/08 , entitled NY Rebar Installation Inc. v. Ferrandino Son Inc, Wheaton/MWFourth Avenue Limited Partnership, Utica Mutual Ins Co and "John Doe (1- 10).According to Utica , this action , commenced September 23 2008 by one of Ferrandinomaterials supplier which was seeking $72 134. , has been settled.


DISCUSSION

CPLR 602(a) permits that "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.

Consolidation or a joint trial should be ordered when the actions involve common

questions of law and fact so as to avoid unnecessary duplication of trials , save

unnecessary costs and to avoid the possibility of inconsistent decisions based upon the

same facts. Viafax Corp. v. Citicorp Leasing. Inc. , 54 AD. 3d 846 (2 Dept. 2008);and

Gutman v. Klein , 26 AD. 3d 464 (2 Dept. 2006). See also Padula v. City of New York

52 AD. 3d 795 (2 Dept. 2008). Consolidation rests within the sound discretion of the

trial court. Mattia v. Food Emporium. Inc. , 259 AD.2d 527 (2 Dept. 1999).

The party seeking consolidation must establish the existence of common

questions of law or fact. Beerman v. Morhaim , 17 AD. 3d 302 (2 Dept. 2005). Once

the movant has established the existence of common questions of law or fact , the party

opposing consolidation must demonstrate that it will suffer prejudiceJQ a substantial

right if consolidation is granted. Mattia v. Food Emporium. Inc. supra. Absent that

showing, consolidation or a joint trial will be ordered if the movant meets its burden. Id.

See also Viafax Corp. v. Citicorp Leasing. Inc. supra; and Mas-Edwards v. Ultimate

Services, Inc. , 45 AD. 3d 540 (2 Dept. 2007). Delay of trial is not a sufficient basis to


warrant denial of a motion for a joint trial or consolidation. Perini Corp. v. WDF. Inc. , 33

AD. 3d 605 (2 Dept. 2006).

When actions are pending in different counties , it is appropriate to move venue to

the county where the first action was filed. Mas-Edwards v. Ultimate Services. Inc.

supra; Moor v. Moor, 39 A.D. 3d 507 , 508 (2 Dept. 2007); and Mattia v. Food

Emporium. Inc. supra. This rule is to be followed unless special circumstances are

present and in that instance , it is left to the discretion of the trial court to make a

determination as to which venue is appropriate. Mas-Edwards v. Ultimate Services.

Inc. supra; Moor v. Moor supra; and Matta v. Food Emporium. Inc. supra.

Where the plaintiffs are different , it is more appropriate to direct a joint trial rather

than to consolidate the two actions. Mas-Edwards v. Ultimate Services. Inc. supra

541; and Perini Corp. v. WDF, Inc. supra at 606.

All three actions stem from Wheaton and Ferrandino s Contract relating to the

Project. Action NO. 1 relates to Ferrandino s claims for payment by Wheaton and

Wheaton s counterclaims for breach of contract against Ferrandino. It also involves

Wheaton s third-party action against Utica relating to the bonds issued by Utica to

Ferrandino ensuring performance and payment. Action NO. 2 was commenced by

Ferrandino seeking a declaration that Utica has no duty to act pursuant to the bonds

and that Wheaton s failure to pay Ferrandino discharges Utica from performing pursuant

to the bonds. Utica then cross-claimed against Wheaton for a declaration that it has

been discharged of its obligations under the Bond. Thereafter, Utica brought suit


regarding the Indemnity Agreement and the Oneida County Defendants ' obligations

under that Agreement relating t the issuance of the bonds by Utica to Ferrandino. The

Oneida County Defendants ' counterclaims relate back to the facts and claims asserted

in Action Nos. 1 and 2. Thus, it is apparent to this Court that all three actions share

common questions of law and fact which are so interrelated that they must be tried

jointly. Consequently, Ferrandir)o , as movant, has met its burden.

In opposition to Ferrandino s motion , Utica fails to raise a sufficient argument that

it will suffer prejudice to a substantial right if this Court grants Ferrandino s motion.

Utica argues that:

Despite being contractually obligated , the (OneidaCounty Defendants) have failed and refused toprovide the collateral security deposit. Both NewYork State and Federal courts , applying New YorkLaw, have consistently upheld the validity of collateralsecurity provisions in indemnity agreements evenwhen the surety s loss has yet to be finalized.(Kuzow Affirmation , p. 8).

Utica goes on to further argue that the amount sought for the costs and expenses

Utica incurred and paid as a result of it being Ferrandino s surety, are damages which

Utica has already incurred and are not at issue in either Action NO. 1 or 2. In a similar

vein , in arguing that the three aqtions do not share common questions of law or fact

Utica argues that

, "

(a) determination of whether a contractor was actually in default on

the guaranteed contract is immaterial to the surety s right to indemnification. (Id. at p.

20). These arguments are appropriate to support Utica s motion for summary judgment

in Action NO. 3 but do not establ.ish prejudice to a substantial right.


Utica s only argument with respect to prejudice to a substantial right is that if the

actions are consolidated , during trial Utica would be placed in the role of both defendant

and plaintiff and it would be aligned with Ferrandino on certain issues and adverse to

Ferrandino on others. Utica argues that "(t)his could result in jury confusion and

prejudice Utica Mutual's right to fair trial , which can be avoided by keeping these

respective actions separate.(Id. at p. 22). Thereafter, Utica asserts that Ferrandino is

seeking to consolidate all three actions in order to delay Action NO. 3 and for its own

convenience.

This is not a case where the issues and applicable legal principles are so

dissimilar that the joint trial of the three actions wil be unwieldy creating jury confusion

and depriving the parties of their right to a fair trial. See e. Abreau v. American

Bankers Ins. Co. of Florida , 261 A.D.2d 501 (2 Dept. 1999)(consolidation of an action

for insurance proceeds following decedent's accidental death 'due to a chemical spil

and separate action for wrongful death stemming from physician s alleged negligence

was improper). All three actions revolve around the parties ' claims in light of the

impending and eventual default of Ferrandino by Wheaton and the impact of that default

upon the parties ' rights and duties pursuantto the Contract , Bond and Indemnity

Agreement. Consequently, it cannot be said that consolidation or joint trial will lead to

prejudice to a substantial right of Utica. Thus , Ferrandino s motion for a joint trial must

be granted.


Given the fact that Utica is a third-party defendant in Action No. , a defendant in

Action NO. 2 and plaintiff in Action No. , it is appropriate to order a joint trial of the three

actions as opposed to consolidating them Siegel New York Practice 4 , 9127.

Furthermore , since the first two actions were filed in Nassau County and Utica has not

set forth any special circumstances requiring that the matters be moved to Oneida

County, venue of all three actions will be in Nassau County.

Since Justice Hester has adjourned Utica s summary judgment motion pending

the resolution of the instant motion to consolidate or for a joint trial , it is unnecessary for

this Court to address Ferrandino s motion for a stay as it appears to be academic.

Accordingly, it is

ORDERED that the motion of Ferrandino & Son , Inc. is granted to the extent

that the following actions Ferrandino Son, Inc. v. Wheaton Builders, Inc. , LLC and

HE2 Project Development LLC and related third-party action (Nassau County Index No.

14338/08), Ferrandino Son, Inc. v. Utica Mutual Insurance Company and Wheaton

Builders, Inc. , LLC (Nassau Co Jnty Index No. 14887/08) and Utica Mutual Insurance

Company v. Ferrandino Son Inc. , Ferrandino Son Environmental, Inc. , KAF Realty

/nc. , Ferrandino Son Realty Inc. , Giavanna Realty Inc. ' Peter Ferrandino and Karen

.,--

Ferrandino (Oneida County Index No. CA2008/2912) are hereby joined for trial; and it is

further


ORDERED that the Clerk of the Oneida County Supreme Court is directed to

transfer the file pertaining to Utica Mutual Insurance Company v. Ferrandino Son Inc.

Ferrandino Son Environmental, Inc. , KAF Realty Inc. , Ferrandino Son Realty Inc.

Giavanna Realty Inc. , Peter Ferrandino and Karen Ferrandino (Oneida County Index

No. CA2008/2912) to the Clerk of the Nassau County Supreme Court; and it is further

ORDERED that the new caption will be as follows:

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU

FERRANDINO & SON, INC. Action No.

Index No. 14338-Plaintiff

- against -

WHEATON BUILDERS , INC., LLC andHE2 PROJECT DEVELOPMENT , LLC.

Defendant------------------------------------------------------------------------xWHEATON BUILDERS INC. , LLC

Third-Part Plaintiff

. -

against -

UTICA MUTUAL INSURANCE COMPANY

- - .--

Third-Part Defendant


FERRANDINO & SON , INC. Action No.

Index No. 14887-

Plaintiff

- against -

UTICA MUTUAL INSURANCE CO. andWHEATON BUILDERS INC. , LLC,

Defendants

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF ONEIDA

UTICA MUTUAL INSURANCE CO. Action No.

Index No. CA2008/2912Plaintiff

- against -

FERRANDINO_ &. SON, INC.,FERRANDINO &" SON ENVIRONMENTAL,INC. , KAF REALTY, INC .,FERRANDINO & SON REALTY, INC.GIAVANNA REALTY, INC. , PETERFERRANDINO , AND KARENFERRANDINO, '

Defendants.x; and it is further

ORDERED, that counsel for the respective parties shall appear for a conference

---

to reschedule the Oneida summary judgment motion for submission to this Court on

April 14 , 2009 at 9:30 a.

This constitutes the decision and Order of th

fS- lTEREDTIN , J.

MA 1 1 2Q

NASSAU COUNTYOUNTV CLERK'S OFICE

Dated: Mineo/a , NYMarch 12 , 2009

Documents

5Co.'0decisions.courts.state.ny.us/10jd/nassau/decisions/... · Ferrandino commenced Action NO. 2 in Nassau County on August 11, 2008. In this suit, Ferrandino sued Utica and Wheaton