The following papers were read on the motion of Winston & Winston, P.C. for an order: (1) restoring this action to the calendar of this Court; (2) declaring that Winston & Winston, P.C. is a third-party beneficiary of the settlement agreement that settled this action; (3) staying the prosecution of a commercial small claims action commenced in Civil Court, New York County captioned Peltz Process Service, Inc. v. Winston & Winston, P.C, Civil Court New York County Index No. 317/07 removing it to this Court and consolidating it with this restored action; (4) consolidating this action with an action commenced in Supreme Court, New York Count captioned Winston & Winston, P.C. v. Peltz Processing Service, Inc and Rob Peltz, Supreme Court, New York County Index No. 601189/07; and/or (5) dismissing the commercial small claims action.

Order to Show Cause dated June 12, 2007;

Affirmation of Jay Winston, Esq. dated June 8, 2007;

Affirmation of Jay Winston, Esq. dated June 7, 2007;

Affidavit of Robert Peltz sworn to on June 22, 2007;

Affirmation of Richard S. Kestenbaum, Esq. dated June 20, 2007;

Affirmation of Jay Winston, Esq. dated June 29, 2007.

`Winston & Winston, P.C. ("Winston Firm") moves for an order (1) restoring this action ("Peltz Action") to the calendar of this court; (2) declaring the Winston Firm to be a third-party beneficiary of the settlement agreement that settled Peltz Action; (3) staying the prosecution of a commercial small claims action commenced in Civil Court, New York County captioned Peltz Process Service, Inc. v. Winston & Winston, P.C., Civil Court New York County Index No. 317/07 ("Small Claims Action") removing the Small Claims Action to this Court and consolidating it with the Peltz Action; (4) consolidating the Peltz Action with an action commenced in Supreme Court, New York Count captioned Winston & Winston, P.C. v. Peltz Processing Service, Inc and Rob Peltz, Supreme Court, New York County Index No. 601189/07 ("Winston Action"); and/or (5) dismissing the Small Claims Action.^[FN1]

BACKGROUND

Plaintiff, Peltz Process Service, Inc. ("PPS") was in the business of serving legal process for attorneys. Plaintiff Robert Peltz ("Robert") and Defendant Arthur Peltz ("Arthur") were each 50% shareholders in Process Service.

By written agreement dated August 7, 2003, Robert and Arthur agreed to terminate the business of PPS as of the close of business on August 12, 2003 ("Dissolution Agreement"). The Dissolution Agreement provided for the winding up of PPS business and its dissolution on or [*2]before December 31, 2003.

The Dissolution Agreement contained detailed provisions regarding the receipt and distribution of the PPS accounts receivable, the division of PPS clients and a non-solicitation clause. Robert commenced the Peltz Action alleging that Arthur was breaching these provisions of the Dissolution Agreement.

The Peltz Action was settled by Stipulation dated June 22, 2005 ("Settlement Agreement"). The Settlement Agreement provided that Arthur and Robert would retain a mutually agreed upon attorney to perform collection services to recover all of the PPS outstanding accounts receivable. It also provided a procedure for the division and distribution of the accounts receivable when collected.

By letter dated May 11, 2006, Houslanger & Associates, PLLP wrote to the Winston Firm requesting immediate payment of the amount claimed by PPS to be due and owing.

Although this Court has not been provided with a copy of the complaint in The Small Claims Action, the Court surmises that Robert commenced that action in the Commercial Small Claims Part of the Civil Court, New York County seeking to recover the amount allegedly due and owing to PPS by the Winston Firm. (New York City Civil Court Act ["CCA"] Article18-A).

Some time in 2007, the Winston Firm has commenced the Winston Action in Supreme Court, New York County. Although the Winston Firm seeks to have that action removed from New York County and consolidated with the Peltz Action, the court has not been provided with a copy of any of the pleadings in that action.

Robert has attached the portion of the complaint in the Winston Action which contains the fourth cause of action to his opposition papers. This cause of action seeks to recover expenses allegedly incurred by the Winston because PPS did not make service of process on items sent to it prior to its dissolution.

The motion must be denied because it is procedurally defective. A motion to consolidate should be supported by a copy of the pleadings in the actions the movant seeks to consolidate. See, Carmody-Wait2d § 17:55. The papers submitted in support of this motion do not contain a copy of any of the pleadings in any of the actions the Winston Firm seeks to consolidate. Without being able to review the pleadings, the

Court cannot possibly determine if the Peltz Action and the New York County Actions involve common questions of law or fact.

CPLR 602(b) permits this Court to remove to itself actions pending in other courts to be consolidated or tried jointly with cases pending before this Court. Actions that involve common questions of law or fact may be consolidated or tried jointly. CPLR 602(a).

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. Gutman v. Klein, 26 AD3d 464 (2nd Dept. 2006); and 3-6 New York Civil Practice: CPLR  602.04. The [*3]party seeking consolidation must establish the existence of common questions of law or fact. Beerman v. Morhaim, 17 AD3d 302 (2nd Dept. 2005).

The Winston Firm has failed to establish that the Peltz Action and the New York County Actions involve common questions of law or fact. This is especially true since the Peltz Action has long since been settled and discontinued. There are no questions of law or fact before this Court in regard to that action.

Even if the Peltz Action was still pending, consolidating it with the New York County Actions would be improper.

The Peltz Action was a breach of contract action in which Robert sued to enforce the Dissolution Agreement. The only relationship the Stipulation of Settlement of the Peltz Action has to the New York County Actions is that the amount due, if any, to PPS from the Winston Firm will, when collected, be distributed in accordance the terms of the Stipulation of Settlement. The New York County Actions have no relationship whatsoever to the issues resolved in the Peltz Action.

There is plainly no possibility of an unnecessary duplication of trials or irreconcilably inconsistent results between the Peltz Action and the New York County Actions. The Peltz Action was settled; it will never be tried.

The Winston Firm seeks to restore the Peltz Action to the calendar of this Court so that it can be declared a third-party beneficiary of provisions of the Settlement Agreement which provide for PPS to retain counsel to obtain payment. This is not the proper means to obtain such relief.

In essence, the Winston Firm is seeking leave to intervene in the Peltz Action. Intervention is a means by which one who is not a party to an action becomes a party to an action. Siegel, New York Practice 4th §178. CPLR 1012(a)(1)-(3) sets forth the bases for intervention. None of those factors are present in this case. Furthermore, a motion to intervene must be timely made. CPLR 1012(a). A motion made over two years after the Peltz Action was settled is hardly timely.

An application to intervene must be supported by a copy of the proposed pleading upon which the claim or defense which gives rise to the right to intervene. CPLR 1014. The Winston Firm has not attached a copy of its proposed pleading to the motion papers.

Finally, the Winston Firm will never be able to prevail on the merits of its claim that it is a third-arty beneficiary of the Settlement Agreement.

The Stipulation of Settlement is a contract. See, Ross v. Ross, 16 AD3d 713 (3rd Dept. 2005); McKenzie v. Vintage Hallmark, PLC, 302 AD2d 503 (2nd Dept. 2003); and Charter Realty & Development Corp. V. New Roc Assocs., L.P., 293 AD2d 438 (2nd Dept. 2002). A third-party may sue to enforce a contract made for its benefit. Port Chester Electric Construction Corp v. Atlas, 40 NY2d 652 (1976); and Lawrence v. Fox, 20 NY 268 (1859). However, to bring an action to recover as the third-party beneficiary of a contract, the third-party must establish that it was the specific intent of the contracting parties to benefit that third-party. [*4]Port Chester Electric Construction Corp. v. Atlas, supra ; Crown Wisteria, Inc. v. F.G.F. Enterprises Corp., 168 AD2d 568 (1st Dept. 1990). A third-party who is only an incidental beneficiary to the contract may not sue to enforce the contract. Amin Realty, LLC v. K & R Construction Corp., 306 AD2d 230 (2nd Dept. 2003); and Board of Managers of the Riverview at College Point Condominium III v. Schorr Brothers Development Corp., 182 AD2d 664 (2nd Dept. 1992).

It is clear that neither Arthur nor Robert intended to make the Winston Firm a beneficiary of their Stipulation of Settlement. The Stipulation of Settlement established a mechanism for the collection and distribution of the remaining PPS accounts receivable. It also provided for Robert and Arthur to account to each other for PPS accounts receivable collected by Robert and/or Arthur through the date of Stipulation of Settlement. It was an agreement to resolve disputes between Robert and Arthur arising out of the Dissolution Agreement. It was not intended to benefit any one other than the parties to that agreement; to wit: Robert and Arthur. It is not clear how a client of PPS can be viewed as a third-party beneficiary of Robert and Arthur's Dissolution or Settlement Agreements.

The Small Claims Action is a potentially proper method for PPS to recover any amounts due to it from the Winston Firm.. The purpose of CCA Article 18-A is to permit business entities such as corporations to maintain small claims actions. See, Siegel, New York Practice 4th §585A.^[FN2] The only limitation on a corporation commencing a small claims action is that the action may not seek damages in an amount in excess of the amount permitted by CCA §1801. See, CCA §1801-A(1).^[FN3] Thus, if PPS sued the

Winston Firm for $5,000 or less, the commercial small claims part of the Civil Court, New York County has subject matter jurisdiction to hear the action.

The Winston Firm asserts that the Small Claims Action should be dismissed because PPS cannot sue in the Commercial Small Claims Part of the Civil Court, New York County. CCA §1809-A(1) permits a corporation which has its principal office in the City of New York to institute a commercial small claim action in Civil Court. The principal office of PPSW was in Nassau County. The Winston Firm asserts that this deprives the Civil Court of jurisdiction over the action. While this may be valid defense,

this defense can and should be raised in the Civil Court, New York County, the court which properly has jurisdiction over that action.

The Winston Firm also appears to be asserting that the PPS dissolution deprived it of the right to bring this action. A dissolved corporation may maintain actions involved in the winding up of its corporate business. Race Safe Systems, Inc. v. Indy Racing League, 251 F.Supp.2d [*5]1106 (E.D.NY 2003); and School of Music of the Brooklyn Free Musical Society v. Moritt, 145 NYS2d 645 (Sup.Ct. Kings Co. 1955). An action to recover accounts receivable is part of the winding up of the business..

The Winston Firm also asserts that the Stipulation of Settlement deprives Robert of the right to maintain the action. The Winston Firm asserts that under the Stipulation of Settlement, only an attorney can bring an action to recover PPS accounts receivable. The Winston Firm is asserting that Robert lacks standing to bring the Small Claims

Action. See, Siegel, New York Practice 4th §136. Lack of standing would be an affirmative defense to the Small Claims Action. See, Matter of Fosella v. Dinkins, 66 NY2d 162 (1985); and Siegel, New York Practice 4th §223. Thus, Civil Court, New York County is the proper forum in which to raise the issue of Robert's standing to maintain the action.

The Peltz Action was fully resolved over 2 years ago. There is simply no reason why this Court should restore it to active status on the motion of the Winston Firm, which was not a party to that action and whose rights were not affected by the Settlement Agreement.

The Winston Firm's motion is, at best, procedurally defective and substantively meritless.

22 NYCRR 130-1.1 permits the court to sanction frivolous conduct. Conduct is frivolous if it is completely without merit in law or it is undertaken primarily to delay or prolong the resolution of litigation. 22 NYCRR 130-1.1(c)(1)(2). This Court believes that the Winston Firm brought this motion primarily to delay or prolong the resolution of the Small Claims Action. The Small Claims Action was scheduled to be heard on June 14, 2007. The proposed order to show cause which stayed the trial of the Small Claims Action pending the hearing and determination of the motion was submitted to the Court on June 12, 2007.

Significantly, the Winston Firm never denied owing money to PPS. The defenses the Winston Firm asserts in its papers are procedural; not substantive. The defenses the Winston Firm seeks to interpose could, and properly should, have been raised at the trial of the Small Claims action. Had the Winston Firm not made this motion, the Small Claims Action would probably have been resolved by now.

Additionally, the Winston Firm knew that the Peltz Action was settled when it made this motion. It attached a copy of the Stipulation of Settlement as an exhibit to its motion papers. Thus, it knew that there was no possibility that there could be unnecessary, repetitive trials or inconsistent results involving the New York County Actions and the Peltz Action.

Furthermore, the Winston Firm does not appear to have taken any action to prosecute the Winston Action or to consolidate the Small Claims Action with that action.

The New York County Actions may involve common questions of law or fact. If the Winston Firm wanted to have all of disputes between Robert, Arthur, PPS and it resolved in one court, then it should have moved to consolidate these actions in New York County.

This is clearly a circumstance where sanctions are appropriate inasmuch as the Winston firm appears to have prosecuted this motion for the sole purpose of delay of the New York County Actions without any merit or colorable basis for invoking this Courts' jurisdiction. However, sanctions cannot be imposed without a hearing. Haddad

v. Haddad, 272 AD2d 371 (2nd Dept. 2000); Greystone Staffing, Inc. v. Vincenzi, 7 Misc 3d 1024 (A), (Sup.Ct.

Nassau Co. 2005); and 22 NYCRR 130-1.1(d).

Accordingly, it is,

ORDERED, that the motion of Winston & Winston, P.C. is denied; and it is further,

ORDERED, that the stay of the trial of the Small Claims Action is hereby vacated; and it is further,

ORDERED, that, on the Court's motion, Winston & Winston, P.C. is directed to show cause before this Court on September 25, 2007 at 9:00 a.m. why this Court should not impose sanctions pursuant to 22 NYCRR 130-1.1.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY____________________________

September 4, 2007Hon. LEONARD B. AUSTIN, J.S.C.