GUTMAN v. KLEIN

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Supreme Court, Appellate Division, Second Department, New York.

Aryeh GUTMAN, et al., respondents, v. Zalman KLEIN, et al., appellants.

Decided: February 28, 2006

ANITA R. FLORIO, J.P., DAVID S. RITTER, PETER B. SKELOS, and ROBERT A. LIFSON, JJ. Noel W. Hauser, New York, N.Y., for appellants. Oved & Oved, LLP, New York, N.Y. (Darren Oved of counsel), for respondents.

In an action, inter alia, to impose a constructive trust, the defendants appeal from so much of an order of the Supreme Court, Kings County (Schneier, J.), dated March 3, 2005, as denied those branches of their motion which were to dismiss the complaint pursuant to CPLR 3211(a)(4), (5), and (7), and to vacate a notice of pendency.

ORDERED that the order is modified, on the law, by adding a provision thereto consolidating the action with an action entitled Klein v. Gutman, pending in the Supreme Court, Kings County, under Index No. 35890/01;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Taking the facts alleged in the pleadings as true, and according the plaintiffs every favorable inference (see Leon v. Martinez, 84 N.Y.2d 83, 614 N.Y.S.2d 972, 638 N.E.2d 511;  Fay Estates v. Toys “R” Us, Inc., 22 A.D.3d 712, 803 N.Y.S.2d 135), the complaint was sufficient to state causes of action (1) to impose a constructive trust (see Sharp v. Kosmalski, 40 N.Y.2d 119, 386 N.Y.S.2d 72, 351 N.E.2d 721), (2) for attachment (see Mineola Ford Sales v. Rapp, 242 A.D.2d 371, 661 N.Y.S.2d 281), (3) for an accounting (see Schantz v. Oakman, 163 N.Y. 148, 57 N.E. 288), and (4) to recover damages for unjust enrichment (see Carriafielio-Diehl & Assoc., Inc. v. D & M Elec. Contr., Inc., 12 A.D.3d 478, 784 N.Y.S.2d 617).   Further, as pleaded, these causes of action are not time-barred (see Eickler v. Pecora, 12 A.D.3d 635, 785 N.Y.S.2d 126;  North Salem Cent. School Dist. v. Mahopac Cent. School Dist., 1 A.D.3d 418, 768 N.Y.S.2d 11;  Jakacic v. Jakacic, 279 A.D.2d 551, 719 N.Y.S.2d 675;  L & L Plumbing & Heating v. DePalo, 253 A.D.2d 517, 677 N.Y.S.2d 153;  Barash v. Estate of Sperlin, 271 A.D.2d 558, 706 N.Y.S.2d 439).   Consequently, the court properly denied those branches of the defendant's motion which were to dismiss the complaint pursuant to CPLR 3211(a)(5) and (7), and to vacate the notice of pendency (see Klein v. Gutman, 12 A.D.3d 348, 784 N.Y.S.2d 145).

In addition, the court properly denied that branch of the defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(4).   However, pursuant to CPLR 3211(a)(4), the court should have consolidated this action with another action entitled Klein v. Gutman, pending in the Supreme Court, Kings County, under Index No. 35890/01 (see Whitney v. Whitney, 57 N.Y.2d 731, 454 N.Y.S.2d 977, 440 N.E.2d 1324;  Benenson v. SKEK Assoc., 293 A.D.2d 694, 741 N.Y.S.2d 418;  Breiterman v. Elmar Props., 123 A.D.2d 735, 507 N.Y.S.2d 206).   Both actions involve common questions of law and fact, and consolidation will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts (see Fay Estates v. Toys “R” Us, Inc., supra;  Beerman v. Morhaim, 17 A.D.3d 302, 791 N.Y.S.2d 854).

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