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Orlowski v. Wolchok

Orlowski v Wolchok 2024 NY Slip Op 33259(U) September 17, 2024 Supreme Court, New York County Docket Number: Index No. 453305/2021 Judge: Judy H. Kim Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 453305/2021 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/17/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JUDY H. KIM 04M PART ---------=-------- Justice -~--------------------X

RICHARD ORLOWSKI, INDEX NO. 453305/2021

Plaintiff,

- V - DECISION + ORDER ON MOTION (Seq. No. 002) JAMES M. WOLCHOK, ROBERT L. WOLCHOK,

Defendants. ---------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 002) 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87 were read on this motion to/for JUDGMENT - DEFAULT

Upon the foregoing documents, plaintiff's motion for consolidation is granted and

plaintiff's motion for a default judgment is denied for the reasons set forth below.

On April 13, 2021, plaintiff commenced this negligence action to recover for injuries

allegedly sustained on September 10, 2020, while performing construction work at 77 Franklin

Street, County, City and State of New York (NYSCEF Doc. No. 1 [Comp. at ,r 39]). Thereafter,

defendants commenced a third-party action against Zibigniew Lankamer and Nice Floors Corp.,

asserting claims for contribution and indemnity. On September 5, 2023, plaintiff commenced

another action in New York State Supreme Court, New York County, Richard Orlowski v 77

Franklin Street LLC, as successor in interest to James M. Wolchok and Robert L. Wolchok, Robert

L. Wolchok, Inc., Zbigniew Lankamer, and Nice Floors Corp., under index number 158771/2023

(the "2023 Action"). Plaintiff now moves, pursuant to CPLR 602, to consolidate the 2023 Action [* 1] 1 of 4

INDEX NO. 453305/2021 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/17/2024

within the instant proceeding and, upon consolidation, for a default judgment on its claims against

defendant Nice Floors Corp.

DISCUSSION

Plaintiffs motion to consolidate is granted without opposition. "Consolidation is generally

favored in the interest of judicial economy ... where cases present common questions of law and

fact, unless the party opposing the motion demonstrates that a consolidation will prejudice a

substantial right" (Raboy v McCrory Corp, 210 AD2d 145 [1st Dept 1994] [internal citations

omitted]) and it is undisputed that both actions at issue here arise out of the same set of facts and

common questions of law arising from plaintiffs alleged injury on September 10, 2020.

Plaintiffs motion for a default judgment against Nice Floors Corp. is denied, however. To

establish his entitlement to a default judgment pursuant to CPLR 3215, plaintiff is required to

submit proof of: ( 1) proper service of the summons and complaint; (2) the facts constituting the

claim; and (3) defendants' default in answering or appearing (See Gordon Law Firm, P.C. v

Premier DNA Corp., 165 NYS3d 691 [1st Dept 2022]). However, "CPLR 3215 does not

contemplate that default judgments are to be rubberstamped once jurisdiction and a failure to

appear has been shown. Some proof of liability is also required to satisfy the court as to the prima

facie validity of the uncontested cause of action" (Peffer v Malpeso, 210 AD2d 60, [1st Dept

1994 ]). "The standard of proof is not stringent, amounting only to some firsthand confirmation of

the facts" (Id.).

Plaintiff has failed to meet this standard. As an initial matter, plaintiffs allegations against

Nice Floors Corp.-set out in the complaint in the 2023 Action-are verified only by counsel and

are therefore insufficient to sustain a default judgment in the absence of an affidavit of merit

(Martinez v Reiner, 104 AD3d 477, 478 [1st Dept 2013] [internal citations and quotations

INDEX NO. 453305/2021 NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 09/17/2024

Footnotes

[2] of 4 2 of 4 [* 2] omitted]; see also Saks v New York City Health & Hospitals Corp., 302 AD2d 213 [1st Dept 2003]). In any event, the complaint in the 2023 Action-now consolidated with the complaint in this action-alleges only that defendants were careless, reckless, and negligent in allowing dangerous and hazardous conditions to exist without any specific facts as to the condition that caused plaintiffs injury or the defaulting defendant's role in creating or failing to remedy this condition (See~, Celnick v Freitag, 242 AD2d 436,437 [1st Dept 1997]; Cohen v Schupler, 51 AD3d 706 [2d Dept 2008]). Accordingly, it is ORDERED that the branch of plaintiffs motion to consolidate is granted and the action captioned Richard Orlowski v 77 Franklin Street LLC, as successor in interest to James M. Wolchok and Robert L. Wolchok, Robert L. Wolchok, Inc., Zbigniew Lankamer, and Nice Floors Corp., under index number 158771/2023 pending in the New York State Supreme Court, New York County, shall be consolidated within the instant action; and it is further ORDERED that, upon consolidation, James M. Wolchok and Robert L. Wolchok's third party claims against Zibigniew Lankamer and Nice Floors Corp. shall be converted to cross- claims; and it is further ORDERED that the consolidation shall take place under New York County index number 453305/2021; and it is further ORDERED that the consolidated action shall bear the following caption: (continued on next page)

[3] of 4 3 of 4 [* 3] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -----------------------------------------------------------------------------X RICHARD ORLOWSKI, Plaintiff, Index No. 453305/2021 -against- JAMES M. WOLCHOK, ROBERT L. WOLCHOK,

[77] FRANKLIN STREET LLC, as successor in interest to JAMES M. WOLCHOK and ROBERT L. WOLCHOK, ROBERT L. WOLCHOK, INC. ZBIGNIEW LANKAMER, and NICE FLOORS CORP., Defendants. -----------------------------------------------------------------------------X and it is further ORDERED that the branch of plaintiffs motion for a default judgment as against Nice Floors Corp. is denied, without prejudice; and it is further ORDERED that, within twenty days of the date of this decision and order, plaintiff shall serve a copy of this decision and order, with notice of entry, upon all defendants as well as the Clerk of the Court (60 Centre Street, Room 141B) and the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "EFiling" page on this court's website at the address www.nycourts.gov/supctmanh). This constitutes the decision and order of the Co~urt- ----1 I . , DATE: 9/17/2024 ~t/tui<tr~- HOJ. JUDY H. KIM, JSC ' - Check One: D Case Disposed IX I Non-Final Disposition Check if Appropriate: 0 Other (Specify _C_.o-n- __c;_o_L--_1_C:,_~_-r_1_0_,..) _ _ _ _ _ _ _ _ __ 4 of 4 4 of 4 [* 4]