Defendant Pure Earth Transportation & Disposal, Inc. ("Pure Earth T & D") moves to dismiss the complaint pursuant to CPLR 3211 (a) (4) due to the existence of a prior pending action, Pure Earth Transp. & Disposal, Inc. v The Laquila Group, Inc. and Liberty Mut. Ins. Co., Index No. 2306/11 (the "Pure Earth Action"). Plaintiff The Laquila Group ("Laquila") cross-moves (a) pursuant to CPLR 602, to consolidate the instant action (the "Laquila Action") with the Pure Earth Action, or (b) in the alternative, for leave to amend its answer filed in the Pure Earth Action in order to assert its claims in the Laquila Action as counterclaims.

On April 29, 2010, Laquila, as principal, and Liberty Mutual Insurance Company ("Liberty"), as its surety, executed a payment bond in the amount of $27,500,000 in favor of Hunt, guaranteeing payment to Laquila's subcontractors for their performance in connection with the project.

On July 20, 2010, Laquila terminated Pure Earth T & D, alleging the termination was "for cause," and for Pure Earth T & D's failure to pay its subcontractors and vendors. On July 21, 2010, Pure Earth T & D sent a letter to Laquila informing it that it was in breach of its payment obligation, claiming that Laquila's termination of the Contract was unlawful.

On August 12, 2011, Laquila commenced an action against Pure Earth T & D by filing of a summons with notice in New York Supreme Court in Kings County. That notice stated that the nature of the action was for "money damages arising out of the wrongful conduct of the Defendant, to wit: breach of contract and fraud" and that the relief sought is money damages "in an amount to be proven at the time of trial and not less than $2 million ($2,000,000) dollars" (Ex. A to Motion). Service was effected upon Pure Earth T & D on November 8, 2010.^[FN1] On January 31, 2011, Pure Earth T & D served a notice of appearance and demand for complaint upon Laquila's counsel.^[FN2] On February 23, 2011, Laquila filed its complaint in the instant action, alleging that Pure Earth T & D lacked the proper licenses and permits to perform its work and was not paying its subcontractors and vendors, who had filed multiple mechanic's liens due to claims which had not been paid by Pure Earth T & D. In particular, Laquila alleges that on June 18, 2010, the Business Integrity Commission (the "BIC") of the City of New York denied an application of Juda Construction and Pure Earth Inc., the parent company of both Pure Earth T & D and Juda Construction, to operate a trade and construction waste business in New York. According to Laquila's complaint, Pure Earth T & D was an alter ego for Pure Earth Inc., and the BIC had issued a finding against both Juda Construction and Pure Earth Inc., noting that Juda Construction associated with convicted racketeers, that Pure Earth Inc. lacked "good character, honestly and integrity" (Laquila Complaint, ¶¶ 16-17).

On February 1, 2011, a day after serving its notice of appearance and demand for complaint in the Laquila Action, Pure Earth T & D commenced the Pure Earth Action, also in Kings County Supreme Court, against both Laquila and Liberty by filing a summons and complaint, alleging that Laquila's termination was wrongful, violated the termination provision of the Contract, and constituted a material breach of the Contract. Pure Earth T & D alleged that the BIC decision related only to Juda Construction and denied that the decision related to Pure Earth T & D in any way. Pure Earth T & D sought, inter alia, breach of contract damages in the [*3]amount of $2,027,811.30 for unpaid fees owed. On March 1, 2011, Laquila filed its answer in the Pure Earth Action, and on March 8, 2011, Liberty filed its answer.

Pure Earth T & D moves to dismiss the Laquila Action pursuant to CPLR 3211 (a) (4), upon the argument that the Pure Earth Action constitutes a prior pending action. CPLR 3211 (a) (4) allows for the dismissal of an action when "there is another action pending between the same parties for the same cause of action in a court of any state or the United States; the court need not dismiss upon this ground but may make such order as justice requires." A motion to dismiss pursuant to CPLR 3211 (a) (4) should be granted "where an identity of parties and causes of action in two simultaneously pending actions raises the danger of conflicting rulings relating to the same matter" (see Diaz v Philip Morris Cos., Inc., 28 AD3d 703, 705 [2d Dept 2006], citing White Light Prods. v On the Scene Prods., 231 AD2d 90 [1st Dept 1997]).A court enjoys "broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action" (see Cherico, Cherico and Assoc. v Midollo, 67 AD3d 622 [2d Dept 2009]). When evaluating a motion to dismiss based upon a pending action, New York courts employ an analysis similar to that used when evaluating a motion to dismiss based upon forum non conveniens (Flintkote Co. v American Mut. Liab Ins. Co., 103 AD2d 501, 506 [2d Dept 1984], affd 67 NY2d 857 [1986]).

In support of its motion, Pure Earth T & D asserts that because there is a substantial identity of parties and causes of action in both the Pure Earth Action and the Laquila Action, the Laquila Action should be dismissed because the Pure Earth complaint was served on February 1, 2011, prior to the Laquila complaint, which was served on February 23, 2011, making the Pure Earth Action the prior pending action.

Although an action is commenced by the filing of the summons with notice or the summons and complaint (see CPLR 304), New York courts have held that actions commenced by summons and notice alone are not necessarily prior pending actions with respect to actions commenced later by filing of a summons and complaint (see Wharton v Wharton, 244 AD2d 404, 405 [2d Dept 1997]). Thus, priority in filing should not be the controlling factor when resolving the dispute, "especially when commencement of the competing action[s] has been reasonably close in time" (Flintkote Co. v American Mut. Liab Ins. Co., 103 AD2d at 505; see White Light Prods. v On the Scene Prods., 231 AD2d 90, 97 [1st Dept 1997] quoting Brierwood Shoe Corp. v Sears, Roebuck & Co.,479 F Supp 563, 568 [SD NY 1979] (" [the] practice of determining priorities between pending actions on the basis of dates of filing is a general rule, not to be applied in a mechanical way, regardless of other considerations'")).

The Pure Earth Action and the Laquila Action were commenced within months of each other, and the complaints were served within weeks of each other. The Pure Earth Action was commenced only after Pure Earth T & D had appeared in the Laquila Action and demanded a complaint. In the Laquila Action, which was technically commenced first, no answer has been filed, but a Request for Judicial Intervention ("RJI") has been filed, the action has been assigned to this court, and the instant motion to dismiss is pending. In the Pure Earth Action, Laquila has filed and served its answer, but an RJI has not been filed, and the action has not yet been [*4]assigned to a judge although both actions should be litigated before me as any RJI filed for the Pure Earth Action should indicate that the Laquila Action is related. Laquila claims that its complaint was served after the Pure Earth complaint because Laquila had agreed to delay serving its own complaint, believing the parties were engaged in good faith settlement discussions. Pure Earth disputes the characterization, claiming that Laquila "raced to the courthouse" and commenced the Laquila Action by summons with notice only after Pure Earth notified Liberty that it intended to make a claim against Laquila's payment bond. Regardless of the reasons for the sequence of events, this court finds the instant Laquila Action to have been commenced first. Both parties agree that the two actions arise out of the exact same set of facts, involve the same parties and require the court to make findings of fact and law regarding the Contract. The Pure Earth Action includes as a defendant Laquila's surety, Liberty, a "necessary party" according to Pure Earth T & D, which is not a party in the Laquila Action. Both parties express strong interest in remaining plaintiff should one of the actions be dismissed.^[FN3]

Because the two actions have been commenced reasonably close in time to one another, temporal priority is not controlling. A court enjoys broad discretion when determining a CPLR 3211 (a) (4) motion and may make such order as justice requires. Although the two actions enjoy a substantial identity of parties and causes of action, which may warrant dismissal pursuant to CPLR 3211 (a) (4), the motion to dismiss, properly addressed to the Pure Earth Action, has been made herein. As the Laquila Action is already pending before this court and the Pure Earth Action was commenced later and has not yet been assigned to any judge, Pure Earth T & D's motion to dismiss pursuant to CPLR 3211 (a) (4) is denied.

CPLR 602: Consolidation

Laquila cross-moves to consolidate the Pure Earth Action into this instant action, pursuant to CPLR 602, so that Laquila would continue as the plaintiff in the consolidated action. While Pure Earth T & D does not oppose consolidation, it requests instead that the Laquila Action be consolidated into the Pure Earth Action so that Pure Earth T & D would continue as the plaintiff in the consolidated action. CPLR 602 (a) provides that "[w]hen actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."^[FN4] "It is well settled that there is a preference for consolidation in the interest of judicial economy where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" (Geneva Temps, Inc. v New World Comm., Inc., 24 AD3d 332, 334 [1st Dept 2005]). Here, consolidation would be appropriate and judicially expeditious as both actions require the court to determine common questions of law and fact. However, although neither party opposes consolidation outright, the two actions can not be fully consolidated because doing so would place both Laquila and Pure [*5]Earth T & D in the confusing roles of both plaintiff and defendant (Geneva Temps, Inc., 24 AD3d at 335; Padilla v Greyhound Lines, Inc., 29 AD2d 495, 497-498 [1st Dept 1968]). To preserve the integrity of the two actions, the motion to consolidate is therefore granted only to the extent of joining the actions for the purposes of completing discovery and trial (Geneva Temps, Inc., 24 AD3d at 335).

Laquila further moves for leave to amend its answer in the Pure Earth Action to assert counterclaims. Pure Earth consents to Laquila's motion, but such relief cannot be granted in the context of this action.

Pure Earth T & D's motion to dismiss, pursuant to CPLR 3211 (a) (4), is denied. Pure Earth T & D is directed to file and serve its answer within twenty days of the date of this order. Laquila's cross-motion for consolidation is granted to the extent of ordering a joint trial for the actions. Pure Earth T & D is directed to file an RJI in the Pure Earth Action (Pure Earth Transp. & Disposal, Inc. v The Laquila Group, Inc. and Liberty Mut. Ins. Co., Index No. 2306/11) and indicate that the Pure Earth Action is related to the Laquila Action so that the Pure Earth Action may be assigned to this part and discovery can be co-ordinated.

EN T E R,

____________________________

Carolyn E. Demarest

J. S. C.