Ghanem v. New York State Indus. For Disabled, Inc.

2024 NY Slip Op 32589(U)

• Court: New York Supreme Court, New York County
• Decided: July 24, 2024
• Docket: Index No. 653612/2022
• Status: Unpublished

Opinion

Ghanem v New York State Indus. For Disabled, Inc. 2024 NY Slip Op 32589(U) July 24, 2024 Supreme Court, New York County Docket Number: Index No. 653612/2022 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 653612/2022 NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 07/25/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice --------------------X INDEX NO. 653612/2022 MOHAMED GHANEM, MOTION DATE 05/22/2024 Plaintiff, MOTION SEQ. NO. 002 -v- NEWYORK STATE INDUSTRIES FOR DISABLED, INC.,NEW YORK CITY TRANSIT AUTHORITY, DECISION + ORDER ON DEPARTMENT OF SUBWAYS, MAINTENANCE OF WAY PROCUREMENT MOTION

Defendant. --------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36,37,38,39,40 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL

APPEARANCES:

The Law Office of Gary S. Fish, New York, New York (Gary S. Fish, Esq., of counsel) for Plaintiff.

Hardin Kundla McKean & Poletto P.A., New York, New York (David C. Blaxill Esq., of counsel), for Defendant New York State Industries for Disabled, Inc.

HON. EMILY MORALES-MINERVA: This is an action to recover damages for injuries sustained

by Plaintiff, Mohamed Ghanem ("Ghanem"), due to an alleged breach

of contract by defendants for their failure to clean and disinfect

the subway station at 149 th Street and Grand Concourse in Bronx,

New York. The action was commenced on October 8, 2021 against

defendant ACA Industries, Inc. d/b/a American Maintenance, Inc.

("ACA"), et al. in Bronx County, New York, pursuant to Index No.

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. Page 1 of 5 ETAL Motion No. 002

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813725/2021E ("Action l") . 1 On December 14, 2021, the Honorable

Mitchell J. Danziger (J.S.C., Bronx County) transferred the matter

to New York County under Index No. 450089/2022 (NY St Elec Filing

[NYSCEF] Doc. No. 34, Stipulation, Action 1) . 2 On September 30,

2022, Ghanem commenced the instant action against Defendant New

York State Industries for Disabled, Inc. ( "NYSID") , et al. pursuant

to Index No. 653612/2022 ("Action 2").

In his complaints, Ghanem alleges that New York City Transit

Authority entered into contracts with ACA and NYSID, wherein ACA

and NYSID agreed to clean, disinfect, and treat New York City

subway stations (NYSCEF Doc. No. 002, Complaint, Action l; NYSCEF

Doc. No. 002, Complaint, Action 2). It is Ghanem's position that,

as a business invitee of the NYC subway system, he was an intended

third-party beneficiary of these contracts, and on June 13, 2020,

the contract was breached when he slipped, fell, and sustained

electrocution injuries to his left arm as a result of defendants 1

failure to properly clean the subway station platform. (id.}.

On May 22, 2024, Defendant NYSID moved pursuant to CPLR § 602

for a consolidation order, requesting that Action 2 be consolidated

with Action 1 (NYSCEF Doc. No. 31, Defendant NYSID 1 s motion to

1 The matter was discontinued against Defendant Fleetwash, Inc. on January 8, 2024 (NYSCEF Doc. No. 101, Action 1). 2 On July 15, 2024, the Honorable Lisa S. Headley (J.S.C.) issued an order reassigning Action 1 to this jurist (NYSCEF Doc. No. 156, Action 1). Accordingly, both Action 1 and 2 are pending before this jurist. 653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. Page 2 of 5 ETAL Motion No. 002

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consolidate, Action 2). In support, Defendant NYSID argues that

the actions arise from the same incident and involve common

questions of law and fact (id.). Ghanem submits an affirmation in

support, in which he joins in Defendant NYSID' s application {NYSCEF

Doc. No. 42, Ghanem's Affirmation in Support of Motion to

Consolidate, Action 2).

"It is well settled that there is a preference of

consolidation in the interest of judicial economy where there are

common questions of law and fact "· {Geneva Temps, Inc . v New

World Communities, Inc., 24 AD3d 332, 334 [1st Dept 2005] ; see

Raboy v McCrory Corp., 210 AD2d 145 [1st Dept 1994]; Grynberg v BP

Expl. Operating Co., 127 AD3d 553 [1st Dept 2015]) . "Consolidation

is mandated by judicial economy where two lawsuits are intertwined

with common questions of law and fact" (Teitelbaum v PTR Co., 6

AD3d 254, 255 [1st Dept 2004]).

The verified complaints in both Action 1 and Action 2 allege

that "on or about June 13, 2020, on or near underground subway

station, 149 th and Grand Concourse, Bronx, NY . . plaintiff was

caused to slip and fall and sustained electrocution injuries to

his left arm, on the 3 rd rail" (NYSCEF Doc. No. 002, Complaint,

Action 1; NYSCEF Doc. No. 002, Complaint, Action 2). In their

respective complaints, Plaintiff alleges that defendants, NYSID

and ACA, contracted with New York City Transit Authority to clean

and disinfect the subway stations, and Plaintiff was injured

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because the subway platform was not properly cleaned, as

contractually required. (id). These two actions arise out of the

same incident with the same injuries sustained therein, the parties

to each possess knowledge and information relevant to the claim in

the other, and witnesses in each case will be almost identical

(see Firequench, Inc. v Kaplan, 256 AD2d 213 [1st Dept 1998]}.

Therefore, since common questions of law and fact are involved,

consolidation is appropriate.

Further, although only Defendant NYSID moved to consolidate

the actions, the parties agree that the actions raise common issues

of law and fact, and Plaintiff supports, and joins in, the request

for consolidation. Discovery remains outstanding in both matters,

and there is no deadline set at this point for note of issue to be

filed. Thus, in the interest of judicial economy, the motion to

consolidate (seq. no. 002) is granted.

Accordingly, it is hereby:

ORDERED that Defendant NYSID's motion to consolidate (seq.

no. 002) is granted;

ORDERED that Mohamed Ghanem v New York State Industries for

Disabled, Inc., et al., Index No. 653612/2022 is hereby

consolidated with Mohamed Ghanem v ACA Industries, Inc. d/b/a

American Maintenance, Inc., et al., Index No. 450089/2022;

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ORDERED that all documents electronically filed via NYSCEF in

Ghanem, Index No. 653612/2022 are hereby incorporated into Ghanem,

Index No. 450089/2022, and the Clerk of New York County is directed

to consolidate the file assigned Index No. 653612/2022 into the

file assigned Index No. 450089/2022;

ORDERED that the pleadings in each action shall stand as the

pleadings in the consolidated action; and

ORDERED that both matters are scheduled for a virtual Status

Conference on September 9, 2024, at 11:30 A.M. in Part 42.

This constitutes the decision and order of the court.

Notify parties.

t:fjajl~DAE CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART D OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. Page5of5 ETAL Motion No. 002

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