STRASSBERG, ROBERT BRODSKY. GARY HERSHKIN and EDWARD Q'HARA.
Defendants. The following papers read on this motion: Notice of Motion.
SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present:
RON. STEPHEN A. BUCARIA Justice
TRIAL/lAS , PART 3 NASSAU COUNTY
JOSEPH COOPER INDEX No. 21177/06
Plaintiff MOTION DATE: Feb. 20 , 2009 Motion Sequence # 003 , 004 , 005 -against-
FREDERICK N. BRUCKNER , TERRY M. STRASSBERG , ROBERT BRODSKY GARY HERSHKIN and EDWARD Q' HARA Defendants.
The following papers read on this motion: Notice of Motion.... .............................. ..... XX Cross- Motion................ "............................ X Affirmation in Opposition.......................... X Reply Affirmation/Affidavit....................... XXX Memorandum of Law.................................. X Reply Memorandum of Law........................ X
This motion , by defendants Frederick N. Bruckner and Terry M. Strassberg, Robert Brodsky, Gary Hershkin and Edward O' Hara (" SBHO" ), for an order pursuant to CPLR 3212 granting them summary judgment dismissing the complaint against them is referred to the Supreme Court , Suffolk County for determination.
This motion by defendants Bruckner and SBHO for an order pursuant to CPLR
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COOPER v BRUCKNER , et al
Index no. 21177/06
Frederic N. Bruckner v Joseph D. Cooper. Terry M. Strassber Robert Brodsky. Gary Hershkin. Edward O' Hara. Cooper. Selvin & Strassbere and Cooper. Selvin & Strassbere LLP (Index No. 06- 34157) (Supreme Court Suffolk Joseph Cooper v Frederick N. Bruckner. Terry M. County) ("Action No. Strassbere. Robert Brodsky. Gary Hershkin and Edward O' Hara (Index No. 06Terry M. Strassbere. Robert 2117) (Supreme Court Nassau County) ("Action No. Brodsky. Gary Hershkin and Edward O' Hara v Joseph D. Cooper (Index No. 08602 joining for trial
Frederic N. Bruckner v 006919) (Supreme Court Nassau County) ("Action No. Joseph Cooper (Index No. 15229/08) (Supreme Court Suffolk County)(" Action No. denied ; and the crossand placing the venue in Actions No. motion , by plaintiff Cooper , for an order pursuant to CPLR 602 consolidating Actions No. , 2 , 3 and 4 and placing venue of Actions Nos. 2 and 3 in Suffolk County is ); and
1 and 4 in Nassau County is
eranted Prior to these actions , Cooper , Selvin & Strassberg (" CSS" ) was acquired by Margolin , Winer & Evans (" MWE" ) on or about January 15 , .1997 via an agreement with SBHO. SBHO were all partners of CSS when MWE acquired it. Three agreements governed the dissolution of CSS and its acquisition by MWE. Bruckner , an att rney, was also affiiated with CSS: He alleges as a non-equity partner while Cooper alleges his relationship was one of independent contractor. CSS fied a final accounting in 1999 to which Bruckner objected. While Bruckner released SBHO on his claim for an accounting ofCSS , pursuant to the agreements , he sought arbitration of an accounting ofCSS. Cooper commenced a proceeding pursuant to Article 75 of the CPLR seeking to permanently stay that arbitration and although a stay was procured on September 8 , 2005, the Appellate Division , First Department reversed , finding the matter arbitrable. Ultimately, the New York State Society of Certified Public Accountants dismissed the arbitration panel , finding that it lacked jurisdiction because Bruckner was not a member of their society.
Bruckner commenced Action No. 1 in Supreme Court , Suffolk County, against Cooper and SBHO seeking to set aside CSS' accounting and obtain a new one. Bruckner , in fact , commenced the first action in Suffolk County despite the fact that venue would have also been proper in Nassau on account of defendants ' Brodsky, Hershkin and O' Hara s residences. See CPLR 503(a). Two days later , Cooper commenced Action No. 2 in Supreme Court , Nassau County against Bruckner and SBHO alleging fraud , conspiracy to commit fraud and breach of fiduciary duties in relation to CSS' accounting. Cooper also sought to recoup from SBHO their proportionate share of
COOPER v BRUCKNER, et al
Index no. 21177/06
the attorneys ' fees he incurred as a result of the arbitration and the Article 75 proceeding
as well as indemnification based on the agreements. SBHO then commenced Action No. 4 in Supreme 3 in Supreme Court , Nassau County and Bruckner commenced Action No. Court , Suffolk County seeking to recover damages caused by Cooper s allegedly tortious conduct in the Article 75 proceeding, in the arbitration proceeding as well as in the other actions.
It appears that all of the parties agreed that consolidation and/or joint trial of the four actions was appropriate. Nevertheless , while attempts were being made to resolve the venue issue , Bruckner and SBHO moved for a joint trial of all actions in Nassau County. In fact , in support of that application , Bruckner and SBHO all attested that it is beyond dispute that one or more common questions of law or fact exist in those actions such that a joint trial in a sip.gle county (without consolidation) would be appropriate. In response Cooper has moved for a joint trial of the four actions in Suffolk County since that is where the first action was commenced. In response thereto , Bruckner and SBHO seek to . withdraw their application for a joint trial in Nassau County and they oppose Cooper motion for a joint trial in Suffolk County, alleging that common questions of law and/or fact no longer exist , in direct contradiction to their prior position.
When two (or more) actions are pending in the Supreme Court in different counties , the motion to consolidate may be made in either county. Woods v Countv of Westchester 112 AD2d 1037 , 1038 , 2 Dept. , 1985). " Where common questions oflaw or fact exist , a motion to consolidate or for a joint trial pursuant to CPLR 602(a) should the be granted absent a showing of prejudice to a substantial right by the part opposing see also Masmotion. Perini Corp. v WDF. Inc. 33 AD3d 605 606 , 2 Dept. Edwards v Ultimate Services. Inc. 45 AD3d 540 , 2 Dept. , 2007). , 2006;
Not only should Bruckner be judicially estopped from advancing his newfound position , it is clear in any event that the four actions do involve common questions of law and/or fact and that a joint trial wil avoid unnecessary duplication of proceedings , save unnecessary costs and expenses and most importantly, prevent the injustice which could Mas-Edwards v Ultimate Services. Inc. supra Gutman v Klein 26 AD3d 464 465 , 2 Dept. , 2006). Moreover Bruckner and SBHO have failed to establish that a joint trial would prejudice a Mas-Edwards v Ultimate Services. Inc. supra Mattia v Food Emporium. Inc. 259 AD2d 527 , 2 Dept. , 1999). The more appropriate method of consolidation is ajoint trial , particularly in view of the parties ' alignment in the various result from divergent decisions based on the related facts.
substantial right.
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COOPER v BRUCKNER, et al
Mas-Edwards v Ultmate Services. Inc. supra Perini Corp. v WDF. Inc.. supra at p. 606- 607). Finally, venue should be placed in Suffolk County because the first action was commenced in that county and there are no special circumstances which Mas-Edwards v Ultimate Services. Inc. supra Gadelov v Shure 274 AD2d 375 , 2 Dept. Perini Corp. v WDF. Inc. supra Mattia v Food Emporium supra Inconvenience to parties , especially parties who Pfeifer v choose the venue they seek to avoid , pt Dept. , 2000). Liss 275 AD2d 254 actions.
warrant placement of venue elsewhere.
at p. 607;
2000;
, hardly constitutes special circumstances.
Nos. 2 and Cooper s cross-motion for ajoint trial and change of venue in Actions 3 to Suffolk County is
ranted
Actions The Clerk of the County of Nassau is directed to tr ansfer all papers fied in 3 and 4 to the Clerk of the Supreme Court Suffolk County, upon service of a copy of , if any. this decision and order upon her and payment of the appropriate fees
In view of the foregoing, Bruckner and SBHO' s motion for summary judgment is respectfully transferred to Supreme Court , Suffolk County.
Dated
MAR 0 5 2009
ENTFReD MAR 1 0 2009 NASSAU COUNTY COUNTY CLERK' S OFFICE
