By Notice of Motion dated May 7, 2007, defendants 752 Pacific, LLC; Pacific Street Park Corp.; and Jeshayahu Boymelgreen (collectively "the Boymelgreen [*2]defendants") move for an order dismissing the first through fourth causes of action set for in the complaint. More specifically, the Boymelgreen defendants seek dismissal of the first cause of action, which seeks money damages against Mr. Boymelgreen for breaches of a lease on the grounds of documentary evidence, pursuant to CPLR 3211 (a) (1); the second cause of action, which seeks money damages against Mr. Boymelgreen for tortious interference with a contract, on the grounds that a corporate officer or principal is not liable for the corporations acts pursuant to CPLR 3211 (a) (7); the third cause of action, which seeks money damages against Mr. Boymelgreen for battery and false arrest, on various grounds pursuant to CPLR 3211 (a) (7); and the fourth cause of action, which seeks use and occupancy against 752 Pacific, LLC, and Pacific Street Park Corp., on the grounds that the same relief is sought by the plaintiffs as a counterclaim in a prior action currently pending before this court.

By Notice of Motion dated May 7, 2007, defendants AY 535 Carlton, LLC; Forest City Ratner Companies; Bruce C. Ratner; and Forest City Enterprises, Inc., (collectively "the Forest City defendants") move for an order dismissing the first through fourth causes of action set for in the complaint on the grounds that each fails to state a cause of action, pursuant to CPLR 3211 (a) (7), and that there is a defense founded on documentary evidence, pursuant to CPLR 3211 (a) (1). In the alternative, the Forest City defendants seek an order striking paragraph 119 of the verified complaint on the ground that the allegations set forth in that paragraph are prejudicial and unnecessary.

By Notice of Cross-Motion dated May 30, 2007, plaintiffs Pacific Carlton Development Corp; 535 Carlton Ave Realty Corp.; Henry P. Weinstein (collectively "the plaintiffs") seek an order denying both motions to dismiss pending defendants' compliance with discovery demands and other disclosure, pursuant to CPLR 3211, and compelling compliance with such demands pursuant to CPLR 3124. Plaintiffs also seek an order consolidating into their fourth cause of action in the instant matter their counterclaims for use and occupancy which they brought as defendants in the related matter, 752 Pacific, LLC, et al v Pacific Carlton Corp., et al, Sup Ct, Kings County, Index No. 32819/03. Finally, plaintiffs also seek an order, nunc pro tunc, joining Gary H. Silver as a party plaintiff pursuant to CPLR 1002 (a) and 601 (a).

This action, and the aforementioned related action, arise from the assignment of two commercial leases to AY 535 Carlton, LLC (AY Carlton), a company associated with the proposed Atlantic Yards development project in Brooklyn.

On October 27, 1999, plaintiff Pacific Carlton Development Corp. (Pacific Development), as landlord, entered into a long-term commercial lease agreement with defendant 752 Pacific LLC (752 Pacific) for a six-story building located within the confines of what would become known as Forest City Ratner's Atlantic Yards project. On the same day, plaintiff 535 Carlton Avenue Realty Corp. (Carlton Realty), as landlord, entered into a similar long-term commercial lease agreement with defendant Pacific Street Park Corp. (Pacific Street) for a parking lot located within the same confines. The terms [*3]of both leases commenced on November 1, 1999, and ran through September 30, 2047. Plaintiff Henry P. Weinstein is a principal of the two landlords, Pacific Development and Carlton Realty. Defendant Jeshayahu Boymelgreen is a principal of the two tenants, 752 Pacific and Pacific Street.

In addition, on that same day of October 27, 1999, Mr. Boymelgreen executed a personal agreement by which he unconditionally guaranteed payment due to the landlords of any and all obligations which accrued within the first six years of the leases.

On March 31, 2005, 752 Pacific and Pacific Street entered into an option agreement with AY Carlton. Pursuant to that agreement, 752 Pacific and Pacific Street granted AY Carlton an exclusive and irrevocable option to acquire the leases. The option agreement noted that an "affiliate" of AY Carlton intended to be the "master developer" of the proposed Atlantic Yards Project, a large scale development project in Brooklyn associated with Bruce Ratner and the Forest City Ratner Companies. At the same time, the two tenants and AY Carlton placed in escrow an Assignment and Assumption of the tenants' ground leases. On March 2, 2006, the the assignments and assumptions of the ground leases were released from escrow and delivered to AY Carlton. The assignments were recorded on March 14, 2006.

Plaintiffs, in both this action and the related action, alleged that the tenants made no effort to the obtains the landlords' consent to the assignments to AY Carlton, as required by the ground leases. Plaintiffs alleged that on February 20, 2006, the tenants and AY Carlton requested the landlords' consent, by letters to the landlords former, and incorrect address. On March 2, 2006, prior to the landlords' response, the previously prepared assignments of the leases were released from escrow and delivered to AY Carlton.

The landlords, Pacific Development and Carlton Realty, thereafter refused to consent to the assignment of the leases between 752 Pacific and Pacific Street, and AY Carlton, reactivated the related action, which had become dormant. The two landlords also served notices purporting to terminate the ground leases, on the basis of the assignments, as well as separate notices to cure various alleged defaults, including the assignments to AY Carlton.

In September and October 2006, summary judgment motions were filed by both sides in the related action. On or about September 28, 2006, plaintiffs commenced the instant action for money damages by service of a summons with notice. On March 1, 2007, this court rendered its decision on the summary judgment motions in the related action, finding that the assignments to AY Carlton were in violation of the ground leases, and terminating the same as of June 23, 2006. On March 16, 2007, after several extensions to do so, plaintiffs served their complaint in this action.

Plaintiff's third cause of action seeks damages for alleged false imprisonment and battery against Henry P. Weinstein and Gary H. Silver. Mr. Silver is not a named a plaintiff on the Summons and Notice, but plaintiffs do seek to add him as a party plaintiff. [*4]Plaintiffs allege that Mr. Weinstein arranged an appointment to inspect the business, through the office of Mr. Boymelgreen, on September 25, 2006. Mr. Weinstein also informed Mr. Boymelgreen's office that he would be accompanied by Mr. Silver, a registered architect, and that they would be arriving at 11:00 a.m. When the two arrived at the building for their inspection, they were met by Eugene Zlatopolsky, who plaintiff alleges was the building manager and an employee or agent of Mr. Boymelgreen and/or Mr. Ratner. While on the unlocked roof, the two gentleman were approached by Mr. Zlatopolsky and two security guards, and were told by Mr. Zlatopolsky that they would have to leave the roof. Plaintiff further alleges that upon reaching the first floor, Mr. Weinstein and Mr. Silver were told to turn over their cameras, and that when they refused to do so, the security guards locked them inside the building and told them that they could not leave until they surrendered their cameras. Mr. Weinstein then called 911 from his cellphone and made a complaint. Approximately twenty minutes later, before the police arrived at the scene, Mr. Weinstein slipped out the exit when security unlocked the door to admit new visitors. Mr. Silver was, however, physically restrained from doing so himself by a security guard who also attempted to grab his camera. Plaintiffs go on to allege that Mr. Weinstein than re-entered the building, informed the security guards who he was and that he owned the building, and that they were breaking the law by not permitting them to leave. The security guards then permitted Mr. Weinstein and Mr. Silver to leave the building after approximately thirty minutes time. Plaintiffs also allege that when Mr. Weinstein and Mr. Silver returned to their cars, they found that Mr. Zlatopolsky and the two security guards had locked the parking lot and that Mr. Weinstein and Mr. Silver were again detained against their will. After approximately twenty minutes, a police officer arrived on the scene and Mr. Weinstein and Mr. Silver were permitted to leave the parking lot. Finally, plaintiffs also allege that during the course of their allegedly unlawful detention both Mr. Weinstein and Mr. Silver were both subjected to unwanted physical touching in the form of being grabbed by the arm.

The first cause of action in the verified complaint seeks money damages against Mr. Boymelgreen, personally, and others for the tenants' breaches of the leases plus various other sums arising out of the leases between the tenants and the landlords, including punitive damages, the amount of the unpaid rent due and owing under the leases, the amount of the sprint lease payments received by the tenants since August 2004, the amount of the rent and additional rent which would have been payable under the leases, and attorneys' fees, costs and disbursements incurred in both this action and the related action. As Mr. Boymelgreen is not a party to the leases, plaintiffs base their claim against him personally upon the guarantee signed by Mr. Boymelgreen.

However, the guarantee signed by Mr. Boymelgreen expired, by its terms, no later than six years after the commencement of the leases. The commencement date of the [*5]leases was November 1, 1999, and thus the guarantee expired no later than October 31, 2005. The defaults upon which plaintiffs base their claim involve certain assignments of the leases which this court, in its prior decision, found occurred on March 2, 2006, after the expiration of the guarantee. The court notes that the assignments of the leases were not released from escrow prior to the expiration of the guarantee. Accordingly, plaintiffs' first cause of action must be dismissed as against Mr. Boymelgreen.

The Second Cause of Action

The second cause of action in the verified complaint seeks money damages against Mr. Boymelgreen, personally, and others for tortious interference with contractual relations. The contractual relations upon which the claim is based are the leases signed by the tenants.

The leases themselves show that Mr. Boymelgreen signed one as the President of Pacific Street and the other as the Manager of 752 Pacific. A person who has a financial interest in the business of another is privileged to interfere with a contract which that other person or business has with a third party if "his purpose is to protect his own interest and if he does not employ improper means" (Felsen v Sol Café Mfg. Corp., 24 NY2d 682 [1969]; see also Joan Hansen & Company, Inc. v Everlast World's Boxing, 296 AD2d 103, 108 [2002]; Courageous Syndicate v People to People, 141 AD2d 599, 600 [1988]; Murtha v Yonkers Child Care Assn., Inc., 45 NY2d 913, 915 [1978]). Plaintiffs have not alleged that Mr. Boymelgreen held such a financial interest or that he employed improper means. As such, Mr. Boymelgreen can not be held personally liable merely because Pacific Street and 752 Pacific may have profited from a possible breach of contract. Accordingly, plaintiff's second cause of action must be dismissed as against Mr. Boymelgreen.

The Third Cause of Action

The third cause of action in the verified complaint seeks money damages against Mr. Boymelgreen, personally, and others for false imprisonment and battery. The cause of action is based upon the incident of September 25, 2006 involving Mr. Weinstein and Mr. Silver.

Nowhere in the verified complaint, however, is there any allegation that Mr. Boymelgreen participated in the alleged false imprisonment or battery, or any allegation that he was present at the time of the alleged false imprisonment or battery or September 25, 2006. Further, there is no allegation that any of those persons involved in the alleged false imprisonment or battery acted at his direction or were employed by him personally. The only allegation as to Mr. Boymelgreen's involvement is that he was the de facto operator of the building in which the false imprisonment and battery allegedly occurred. Such an allegation is insufficient to support a finding of vicarious liability against Mr. Boymelgreen. Accordingly, plaintiff's third cause of action must be dismissed as against Mr. Boymelgreen.

The Fourth Cause of Action

The fourth cause of action in the verified complaint seeks use and occupancy against [*6]tenants 752 Pacific and Pacific Street, on the grounds that the same relief is sought by the plaintiffs as a counterclaim in the prior action currently pending before this court.

As the Boymelgreen defendants only opposition is that they should not be required to defend the same claim in two separate actions, the court will address this aspect of the Boymelgreen defendants' motion with that part of plaintiffs' cross-motion which seeks consolidation below.

The First Cause of Action

As to Mr. Ratner, the first cause of action asserts that Mr. Ratner, pursuant to the option agreement, agreed to be liable for any damages awarded to the landlords against Mr. Boymelgreen as a result of the assignments and Mr. Boymelgreen's personal guarantee. "As a general rule, in order for someone to be liable for a breach of contract, that person must be a party to the contract" (A & V 425 LLC Contracting Co. v RFD 55th Street LLC, 15 Misc 3d 196 [2007]; HRD, Inc. v Int'l Aircraft Parts, Inc., 257 AD2d 603, 604 [1999]). A person may also be liable for breach of contract if they are in privity to a party who is under obligation to perform pursuant to a contract (see e.g. Smith v Fitzsimmons, 180 AD2d 177, 180 [1992]). Nowhere in the complaint, however, is it alleged that Mr. Ratner is a party to the leases or in privity of contract with the tenants under the lease, such that he could be found liable for a breach of the leases.

The complaint merely alleges, in a conclusory manner, that Mr. Ratner agreed to be liable for any damages arising as a result of the assignments pursuant to the option agreement. A review of the option agreement, however, indicates that the only parties to the agreement were the tenants and AY Carlton. Mr. Ratner signed the option agreement as the president of three limited liability companies which were members of AY Carlton, itself a limited liability company.

Further, it is axiomatic that corporations and limited liability companies are artificial persons, and that the individuals who execute instruments on behalf of such entities in their capacity as officers or other duly authorized agents are not personally liable on those instruments (Connolly v Hall & Grant Const. Co., 192 NY 182, 183 [1908]). So long as corporate officers do not purport to bind themselves individually under such contracts, they may not be held personally liable for the obligations of the corporation (Westminster Const. Co. v Sherman, 160 AD2d 867, 868 [1990]). Where the complaint does not allege that the defendant signed the contract in a capacity other than in his corporate capacity, the claim should be dismissed (see Maranga v McDonald & T. Corp., 8 AD3d 351, 352 [2004]; see also Robinson v Paramount Pictures Corp., 112 AD2d 208 [1985]).

Furthermore, the landlords themselves are not parties to the option agreement, and a person who is not a party to an agreement is without standing to enforce it, unless the parties to the agreement intended to confer third-party beneficiary status upon them (LaSalle Nat'l Bank v Ernst & Young LLP, 285 AD2d 101, 108 [2001]). Although an intended beneficiary may maintain an action to enforce an agreement to which it is not actually a party, an incidental beneficiary may not (Alicea v City of New York, 145 AD2d 315, 317 [1988]). Furthermore, the best evidence of whether the parties to the contract intended a [*7]benefit to accrue to a third party can be ascertained from the contract itself (Alicea, 145 AD2d at 318). Here, an examination of the option agreement reveals no indication that the landlords were intended to be third-party beneficiaries to the agreement.

Pursuant to the option agreement, AY Carlton agreed to establish an escrow fund to pay for certain costs and expenses incurred by the tenants, 752 Pacific and Pacific Street, or Mr Boymelgreen, as a result of potential litigation with the landlords, Pacific Development and Carlton Realty. AY Carlton also agreed to indemnify the tenants and Mr. Boymelgreen for any losses, liabilities, etc, arising out of or in connection with Mr. Boymelgreen's guarantee. Nothing in the option agreement indicates an intention to benefit the landlords, Pacific Development and Carlton Realty. While any potential success by the landlords in pursuing their claims may allow the tenants or Mr. Boymelgreen to assert a third-party claim against AY Carlton for indemnification pursuant to the option agreement, the option agreement does not provide the landlords with the right to assert claims directly against AY Carlton or, as already discussed, Mr. Ratner. Accordingly, plaintiff's first cause of action must be dismissed as to Mr. Ratner.

The Second Cause of Action

As to the Forest City defendants, the second cause of action in the verified complaint seeks money damages against Mr. Ratner, AY Carlton, Forest City Ratner Companies (Forest City Ratner) and Forest City Enterprises, Inc. (Forest City Enterprises) for tortious interference with contractual relations. Again, the contractual relations upon which the claim is based are the leases signed by the tenants.

To state a claim for tortious interference with a contract, a plaintiff must alleged "(1) the existence of a valid contract between plaintiff and a third party; (2) the defendant's knowledge of the contract; (3) a defendant's intentional procuring of the breach; and (4) damages" (Foster v Churchill, 87 NY2d 744, 749-750 [1996]).

First, the interference with contractual relations must be intentional and "not merely negligent or incidental to some other, lawful purpose" (Alvord and Swift v Stewart M. Muller Constr. Co., 46 NY2d 276, 281 [1978]); accord Health-Chem Corp. V Baker, 915 F2d 805, 809 [1990]). Plaintiff must demonstrate that defendant acted with intent "in the sense of an intention to harm plaintiff without economic or other lawful excuse justification" (Alvord and Swift, 46 NY2d at 282). The complaint in this action merely alleges, in a conclusory manner, that the Forest City defendants acted with the requisite wrongful intent, while also alleging that the defendants attempted to effectuate a valid assignment of the ground leases. The attempt to effectuate a valid assignment of the leases belies any allegation of an intent to breach them. The execution of the option agreement on its terms further demonstrates that the Forest City defendants did not act with the intention of breaching the leases.

Furthermore, any alleged breach of the ground leases was caused by the alleged inadequacy of the tenants' efforts to the obtain the consent of their respective landlords, and it has been held that a breach of contract due to an improper assignment does not render an assignee liable for tortious interference (see Macklowe v 42d Street Dev. Corp., 170 AD2d 388 [1991]). While the assignment may have constituted a breach of contract, the court [*8]finds that any breach was incidental.

Next, in regards to the damages element, plaintiffs have failed to sufficiently allege that they suffered any damages as a result of the alleged tortious interference. To recover on a claim for tortious interference, a plaintiff must necessarily demonstrate that they incurred damages as a result of the interference (see e.g. Simon v Noma Electric Corp., 293 NY 171, 177 [1944]). In this action, plaintiffs had the option of consenting to the assignments or exercising their rights to nullify the assignments, and thereby retaining the financial benefits inuring to them under the leases, but rather chose to terminate the leases and seek fair market use and occupancy, an amount above and beyond the rental rate set forth in the leases.

Finally, plaintiffs also fail to sufficiently allege that the Forest City defendants acted with illegality and/or malice, as opposed to an existing economic interest. Where a defendant's interference with a plaintiff's contract is justified by an existing economic interest, rather than motivated by malice, a cause of action for tortious interference does not stand (Felsen v Sol Café Mfg. Corp., 24 NY2d 682, 686-687 [1969]). If an identifiable economic interest can be shown, a tortious interference claim is precluded "unless there is a showing of malice or illegality" (Collins v E-Magine, LLC, 291 AD2d 350, 351 [2002]; Foster v Churchill, 87 NY2d at 750). In this action, the Forest City defendants clearly have an economic interest in the leases. The option agreement created legal rights and obligations between the tenants, 752 Pacific and Pacific Street, and AY Carlton. Further, the Forest City defendants actions were part of the process of acquiring properties in the larger Atlantic Yards project. The documentary evidence in this action, including the complaint, demonstrates an economic justification for the actions of the Forest City defendants, and plaintiffs have failed to allege that the defendants acted illegally or out of malice towards the landlords. Accordingly, plaintiffs' second cause of action must be dismissed.

The Third Cause of Action

As to the Forest City defendants, the third cause of action in the verified complaint seeks money damages against Mr. Ratner, personally, and AY Carlton, for false imprisonment and battery. Again, the cause of action is based upon the incident of September 25, 2006 involving Mr. Weinstein and Mr. Silver, and the allegations that Mr. Ratner, and Mr. Boymelgreen, were de facto operating the building, with AY Carlton as the lessee and 752 Pacific as the sublessee.

The complaint is insufficient to state a claim against Mr. Ratner or AY Carlton for the intentional torts of false imprisonment and battery. None of the persons who is alleged to have been involved with the alleged false imprisonment and battery of Mr. Weinstein and Mr. Silver was an employee or agent of Mr. Ratner or AY Carlton. Furthermore, to the extent that the cause of action against AY Carlton is based upon AY Carlton's status as a lessee, the cause of action is not viable, as AY Carlton is not liable for intentional torts committed by others at the leased premises.

The doctrine of respondeat superior provides that an employer may be held vicariously liable for the tortious acts of its employees, "if those acts were committed in [*9]furtherance of the employer's business and within the scope of employment" (N.X. v Cabrini Med. Ctr., 97 NY2d 247, 251 [2002]). A complaint alleging vicarious liability for an employee's tort must contain an allegation that the defendant is the employer of the alleged primary tortfeasor (see Megrelishvili v Our Lady of Mercy Med. Ctr., 291 AD2d 18, 23 [2002]). The complaint must also allege that the tortious acts were committed "in the course of the employee's duties" (Riviello v Waldron, 47 NY2d 297, 302 [1979]). The complaint in this action fails to allege that the alleged tortfeasors, Mr. Zlatopolsky and the security guards, were employees of Mr. Ratner personally or AY Carlton, or that they acted in the course of their employ by Mr. Ratner or AY Carlton. The documentary evidence in this action, including the complaint, clearly alleges that those individuals involved were employed by those business entities with which Mr. Boymelgreen was associated.

Furthermore, it is well settled that a landlord is not vicariously liable for the tortious conduct committed by a tenant or sub-tenant, or the tenants employees in the absence of an agency relationship or a foreseeable danger (see e.g. Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 519 [1980]). A principal-agent relationship is premised upon the mutual consent between two parties, to allow one person to act on behalf of, and subject to the control of, the other (Maurillo v Park Slope U-Haul, 194 AD2d 142, 146 [1993]). Nothing in the complaint supports the existence of such a relationship between Mr. Ratner or AY Carlton and the allege tortfeasors. Moreover, the assignment of the ground leases does not make Mr. Ratner or AY Carlton the de facto operators of the building, such that they can be found liable for the intentional misconduct of someone else's employees (see e.g. Schmitt v Hunts Point Terminal Produce Co-Op Assn, Inc.,294 AD2d 124, 125 [2002]; Crespo v Triad, Inc., 294 AD2d 145, 147 [2002]). The court notes that the complaint in this action alleges that simultaneous with the assignment of the leases to AY Carlton, AY Carlton subleased the building back to the tenant, 752 Pacific, who at all times continued to operate the building. Accordingly, plaintiffs' third cause of action must be dismissed as to Mr. Ratner and AY Carlton.

The Fourth Cause of Action

As to the Forest City defendants, the fourth cause of action in the verified complaint seeks fair market use and occupancy against AY Carlton for use of the building and parking lot since March 1, 2006, the approximate date of the assignments. The plaintiff landlords do receive monthly tenants from their respective tenants in the amount of the rents due under the ground leases, but seek additional compensation for use and occupancy from the tenants, and from AY Carlton. Plaintiffs allege that AY Carlton is liable because it occupies the building and the parking lot as the lessee, while the respective tenants occupy them as sublessees. The same relief is sought by the plaintiffs as a counterclaim in the prior action currently pending before this court.

The complaint in this action, however, does not allege that AY Carlton ever actually occupied the premises, but rather that the assignment of the leases to AY Carlton occurred simultaneously with AY Carlton subleasing the property back to the tenants. AY Carlton, therefore, has never occupied the premises. The tenants have continued to occupy the [*10]premises from the inception of the original leases, and through the assignments and subleases executed with AY Carlton. As AY Carlton does not occupy the premises, plaintiffs can not recover use and occupancy from AY Carlton.

Moreover, to the extent that the plaintiff landlords assert that they are entitled to use and occupancy because of AY Carlton's status as a sublessor, the court has previously, by its decision of March 1, 2007, that the assignments between AY Carlton and the tenants were invalid. As plaintiffs successfully sought to invalidate the assignments in the related action, plaintiffs can not now argue that AY Carlton is a sublessor pursuant to those same assignments. Accordingly, plaintiffs' fourth cause of action should be dismissed as to AY Carlton.

Plaintiffs, by cross-motion, argue that the motions by both the Boymelgreen and Forest City defendants should be denied and that the court should order compliance with certain disclosure demands, pursuant to CPLR 3211 (d) and 3124.

Generally, the rule is that a dispositive motion, such as a motion to dismiss pursuant to CPLR 3211, stays disclosure until the motion is resolved (see CPLR 3124).

The court also notes that plaintiffs have failed to comply with the requirements of 22 NYCRR § 202.7 (a) and (c). These provision of the Uniform Rules for the New York State Trial Courts require attorneys to consult with each in good faith to resolve any issues in regards to disclosure prior to bringing a motion, and to submit an affirmation that such efforts were made when making such a motion. Moreover, the court notes, a preliminary conference has not yet been held and there have so far been no discovery orders in either this action or the related action. In regards to whether plaintiffs' disclosure requests are entirely overbroad and/or unduly burdensome, the court reserves decision on those issues at this time.

Consolidation

Plaintiffs also seek an order consolidating into their fourth cause of action in the instant matter their counterclaims for use and occupancy which they brought as defendants in the related matter, 752 Pacific, LLC, et al v Pacific Carlton Corp., et al, Sup Ct, Kings County, Index No. 32819/03. This part of plaintiffs' cross-motion is opposed by the Boymelgreen defendants, but unopposed by the Forest City defendants.

The court finds that this aspect of plaintiffs' motion should also be granted, and that the two related matters should be joined for trial, rather than consolidated. The general rule is that absent some showing of prejudice, the existence of common questions of law and/or fact warrants the exercise of the court's discretion to grant consolidation (see e.g. Lamboy v Inter Fence Co., Inc., 196 AD2d 705 [1993]; see also J & A Vending, Inc. v J.A.M. Vending, Inc., 268 AD2d 505 [2000]). "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense and prevent the injustice which would result from divergent decisions based upon the same facts" (Chinatown Apts, Inc. v New York City Transit Auth., 100 AD2d 824 [1984]). Furthermore, consolidation may even be granted when the two separate actions are at different stages in [*11]the litigation process (Smith v Smith, 261 AD2d 928 [1999]). In this action, the court is faced with common questions of law and fact, between essentially the same parties, and with both actions at similar stages in the litigation process. The court notes, however, that joint trial of the two actions is more appropriate in this instance than consolidation and would avoid confusion, as the parties to one action are the plaintiffs in the other and vice versa.

Joinder of Gary H. Silver as a Party Plaintiff

Finally, plaintiffs also seek an order, nunc pro tunc, joining Gary H. Silver as a party plaintiff pursuant to CPLR 1002 (a) and 601 (a). This part of plaintiffs' cross-motion is also opposed by the Boymelgreen defendants and unopposed by the Forest City defendants.

The court finds that this aspect of plaintiffs' motion should also be granted. The defendants are already on notice as to the allegations in the third cause of action for the alleged false imprisonment and battery of Mr. Weinstein on September 26, 2006.The addition of Mr. Silver, who is Mr. Weinstein's architect and allegedly his companion on that day, does not prejudice the defendants in any way.

Accordingly, the Boymelgreen defendants' motion is granted to the extent that (1) plaintiffs' first, second, and third causes of action are dismissed as to Jeshayahu Boymelgreen; and (2) is otherwise denied. The Forest City defendants' motion is granted to the extent that (1) plaintiffs' first cause of action is dismissed as to Bruce C. Ratner; (2) plaintiffs' second cause of action is dismissed as to Bruce Ratner; AY 535 Carlton, LLC; Forest City Ratner Companies; and Forest City Ratner Enterprises, Inc.; (3) plaintiffs' third cause of action is dismissed as to Bruce Ratner and AY 535 Carlton, LLC; and plaintiff's fourth cause of action is dismissed as to AY 535 Carlton, LLC. Plaintiff's cross-motion is granted to the extent that this matter is joined for trial with the related matter, 752 Pacific,

LLC, et al v Pacific Carlton Corp., et al, Sup Ct, Kings County, Index No. 32819/03, and

Gary H. Silver is hereby joined as a party plaintiff.

This constitutes the Decision, Opinion and Order of this Court.

Dated: September 19, 2007

ENTER,

_________________________

IRA B. HARKAVY

J.S.C.