Plaintiffs Customweld Industries, Inc. ("Customweld") and Slip Fit, Inc. ("Slip Fit") in the action commenced in Supreme Court, Suffolk County, move (motion sequence # 002) for an Order consolidating their action against Defendant, The Pike Company. Inc., ("Pike Co") with an action commenced several days earlier by Pike Co against Customweld and Slip Fit in Monroe County. Both actions arise out of the construction of a project referred to in the parties' papers as the Artspace Loft- Patchogue, located in Patchogue, New York. It appears from the pleadings that Pike Co was a prime contractor for the project and Customweld and Slip Fit were subcontractors, supplying materials and certain structural steel work for the project. Customweld and Slip Fit also seek the Court's permission to file an Amended Complaint, attached to their moving papers, setting forth additional causes of action to foreclose their mechanics liens.^[FN1]

In its Complaint, Pike asserts that Customweld and Slip Fit failed to perform their work in a proper and timely manner; in their Complaint, Customweld and Slip Fit assert that they performed such work and provided materials for Pike Co and were not paid. Pike Co sues for breach of contract; Customweld and Slip Fit sue for breach of contract and violation of the General Business law and Lien Law, all in connection with their work on the subject project. Each denies the essential allegations of the other's complaint; Customweld and Slip Fit assert that venue in Monroe County is improper; Pike Co asserts that the Customweld and Slip Fit action should be dismissed due to the fact that an identical action is pending.

In the current motion before this Court, Customweld and Slip Fit allege that they are entitled to consolidation at least for purposes of a joint trial under CPLR section 602 (b) because the two actions involve the same issues; and the actions both involve a project that is ongoing in Suffolk County. In addition, Customweld and Slip Fit append a list of nine material witnesses, all involved with work on the subject project and all of which have residences in Suffolk County, [*2]New York. As the case is in its infancy and no discovery has gone forward, they assert that no prejudice can result from the consolidation and change of venue.

Pike Co, on the other hand, asserts that as the original Plaintiff, it resides in Monroe County, where it commenced the earlier action (by three days) and that it is entitled to the priority generally afforded the venue of the original filing. Pike Co also states that the so called material witness list is of no moment since the Suffolk Plaintiffs have not set forth in their moving papers that they have contacted such entities and averred that they are willing to testify. Pike Co also argues that because many of these persons and entities were not approved sub-subcontractors, they have no basis to testify in these actions. It is Pike Co's assertion that the two actions are essentially identical and should be consolidated in Monroe County. Yet, Pike County makes no cross motion or motion before this Court. The Court has also learned, by contacting the Clerk's office in Monroe County, that Pike Co has not even filed a Request for Judicial Intervention in Monroe County as of the date of this decision.

In a reply affidavit, the President of Customweld and Slip Fit sets forth that each of the nine entities or persons listed in his motion has indicated to him that they will testify. Some of these entities were subcontractors to Customweld and Slip Fit, each of which performed certain work on the Artspace Loft-Patchogue project. Customweld and Slip Fit also allege that the sub-sub contractors were all known and approved by the Pike Co. In addition, others include Pike Co's own inspectors and its concrete subcontractor.

Where, as here, actions brought in separate counties in New York, are sought, via CPLR 602 (b), to be consolidated, where they involve common questions of law and fact, the court must fix the venue of the consolidated action. Mattia v Food Emporium, Inc, 259 AD2d 527, 686 NYS 2d 473 ( 2d Dep't 1999). It is the general rule that the venue is to be set in the county where the first action is commenced. However, venue may be set in the County where the later action was started under certain circumstances, as where the action has arisen in such county or where the trial in the original county would inconvenience witnesses. Mattia v Food Emporium, supra; Gomez v Jersey Coast Egg Producers, Inc, 186 AD2d 629, 588 NYS 2df 589 ( 2d Dep't 1992).

A reading of the pleadings of both parties in both actions reveals that this case involves the construction of a project in Suffolk County; and causes of action, on each side, arising in Suffolk County. While the prime contractor resides in Monroe County, the two steel subcontractors as well as nine purported witnesses, involved in the project, are all residents in Suffolk County. In addition to the above, the Pike Co has agreed that the actions should be consolidated and yet has not filed a Request for Judicial Intervention nor moved in Suffolk County or in Monroe County for consolidation. These cases should be tried together; the causes of action all arose in Suffolk County; potential witnesses, who have stated their willingness to testify are residents in Suffolk County. Such provides the Court with reason to grant the motion to consolidate the two actions in Suffolk County despite the fact that the Suffolk action was commenced three days later than the Monroe County action. Accordingly, it is hereby

[*3]ORDERED, that the branch of the motion by plaintiffs Customweld and Slip Fit to consolidate the aforementioned actions is granted; and it is further

ORDERED, that counsel for plaintiffs Customweld and Slip Fit is directed to serve a copy of this order with notice of entry upon the Clerk of Monroe County within twenty (20) days of the date of this order; and it is further

ORDERED, that upon the payment of the appropriate fees, if any, the Clerk of Monroe County is directed to transfer Index #8205-2010 to Supreme Court, Suffolk County, to be consolidated under Index # 24105-2010; and it is further

ORDERED, that the caption of the consolidated action shall be:

_____________________________________________________X

CUSTOMWELD INDUSTRIES, INC., and SLIP FIT, INC.,

Plaintiffs,

Defendants.

_____________________________________________________X

and it is further

ORDERED, that the branch of Customweld and Slip Fit's motion for leave to file and serve an amended Complaint is also granted, the case being at its earliest stages; and it is further

ORDERED, that the Amended Complaint is deemed filed and served as of the date of this Order; and it is further

[*4]ORDERED, that the Pike Co. shall be afforded thirty (30) days from the date of this order to file and serve its answer to the amended complaint, as well as any counterclaims thereto; and it is further

ORDERED, that a Preliminary Conference is scheduled for on April 18, 2011 at 11:30 a.m. before the undersigned.

Dated: March 14, 2011

Riverhead, New York