Ghanem v New York State Indus. For Disabled, Inc.

2024 NY Slip Op 32589(U)

July 24, 2024

Supreme Court, New York County

Docket Number: Index No. 653612/2022

Judge: Emily Morales-Minerva

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.
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NYSCEF DOC. NO. 57 RECEIVED NYSCEF: 07/25/2024

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PRESENT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. EMILY MORALES-MINERVA PART 

Justice 

42M 

--------------------X INDEX NO. 653612/2022 

MOHAMED GHANEM, 

Plaintiff, 

-vNEWYORK STATE INDUSTRIES FOR DISABLED, 

INC.,NEW YORK CITY TRANSIT AUTHORITY, 

DEPARTMENT OF SUBWAYS, MAINTENANCE OF WAY 

PROCUREMENT 

Defendant. 

--------------------X 

MOTION DATE 05/22/2024 

MOTION SEQ. NO. 002 

DECISION + ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 

36,37,38,39,40 

were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL 

APPEARANCES: 

The Law Office of Gary S. Fish, New York, New York (Gary S. 

Fish, Esq., of counsel) for Plaintiff. 

Hardin Kundla McKean & Poletto P.A., New York, New York 

(David C. Blaxill Esq., of counsel), for Defendant New York 

State Industries for Disabled, Inc. 

HON. EMILY MORALES-MINERVA: 

This is an action to recover damages for injuries sustained 

by Plaintiff, Mohamed Ghanem ("Ghanem"), due to an alleged breach 

of contract by defendants for their failure to clean and disinfect 

the subway station at 149th Street and Grand Concourse in Bronx, 

New York. The action was commenced on October 8, 2021 against 

defendant ACA Industries, Inc. d/b/a American Maintenance, Inc. 

("ACA"), et al. in Bronx County, New York, pursuant to Index No. 

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. 

ETAL 

Motion No. 002 

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813725/2021E ("Action l") . 1 On December 14, 2021, the Honorable 

Mitchell J. Danziger (J.S.C., Bronx County) transferred the matter 

to New York County under Index No. 450089/2022 (NY St Elec Filing 

[NYSCEF] Doc. No. 34, Stipulation, Action 1) . 2 On September 30, 

2022, Ghanem commenced the instant action against Defendant New 

York State Industries for Disabled, Inc. ( "NYSID") , et al. pursuant 

to Index No. 653612/2022 ("Action 2"). 

In his complaints, Ghanem alleges that New York City Transit 

Authority entered into contracts with ACA and NYSID, wherein ACA 

and NYSID agreed to clean, disinfect, and treat New York City 

subway stations (NYSCEF Doc. No. 002, Complaint, Action l; NYSCEF 

Doc. No. 002, Complaint, Action 2). It is Ghanem's position that, 

as a business invitee of the NYC subway system, he was an intended 

third-party beneficiary of these contracts, and on June 13, 2020, 

the contract was breached when he slipped, fell, and sustained 

electrocution injuries to his left arm as a result of defendants 1 

failure to properly clean the subway station platform. (id.}. 

On May 22, 2024, Defendant NYSID moved pursuant to CPLR § 602 

for a consolidation order, requesting that Action 2 be consolidated 

with Action 1 (NYSCEF Doc. No. 31, Defendant NYSID 1 s motion to 

1 The matter was discontinued against Defendant Fleetwash, Inc. on 

January 8, 2024 (NYSCEF Doc. No. 101, Action 1). 2 On July 15, 2024, the Honorable Lisa S. Headley (J.S.C.) issued an 

order reassigning Action 1 to this jurist (NYSCEF Doc. No. 156, Action 

1). Accordingly, both Action 1 and 2 are pending before this jurist. 

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. 

ETAL 

Motion No. 002 

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consolidate, Action 2). In support, Defendant NYSID argues that 

the actions arise from the same incident and involve common 

questions of law and fact (id.). Ghanem submits an affirmation in 

support, in which he joins in Defendant NYSID' s application {NYSCEF 

Doc. No. 42, Ghanem's Affirmation in Support of Motion to 

Consolidate, Action 2). 

"It is well settled that there is a preference of 

consolidation in the interest of judicial economy where there are 

common questions of law and fact "· { Geneva Temps, Inc . v New 

World Communities, Inc., 24 AD3d 332, 334 [1st Dept 2005] ; see 

Raboy v McCrory Corp., 210 AD2d 145 [1st Dept 1994]; Grynberg v BP 

Expl. Operating Co., 127 AD3d 553 [1st Dept 2015]) . "Consolidation 

is mandated by judicial economy where two lawsuits are intertwined 

with common questions of law and fact" (Teitelbaum v PTR Co., 6 

AD3d 254, 255 [1st Dept 2004]). 

The verified complaints in both Action 1 and Action 2 allege 

that "on or about June 13, 2020, on or near underground subway 

station, 149th and Grand Concourse, Bronx, NY . . plaintiff was 

caused to slip and fall and sustained electrocution injuries to 

his left arm, on the 3rd rail" (NYSCEF Doc. No. 002, Complaint, 

Action 1; NYSCEF Doc. No. 002, Complaint, Action 2). In their 

respective complaints, Plaintiff alleges that defendants, NYSID 

and ACA, contracted with New York City Transit Authority to clean 

and disinfect the subway stations, and Plaintiff was injured 

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. 

ETAL 

Motion No. 002 

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because the subway platform was not properly cleaned, as 

contractually required. (id). These two actions arise out of the 

same incident with the same injuries sustained therein, the parties 

to each possess knowledge and information relevant to the claim in 

the other, and witnesses in each case will be almost identical 

(see Firequench, Inc. v Kaplan, 256 AD2d 213 [1st Dept 1998]}. 

Therefore, since common questions of law and fact are involved, 

consolidation is appropriate. 

Further, although only Defendant NYSID moved to consolidate 

the actions, the parties agree that the actions raise common issues 

of law and fact, and Plaintiff supports, and joins in, the request 

for consolidation. Discovery remains outstanding in both matters, 

and there is no deadline set at this point for note of issue to be 

filed. Thus, in the interest of judicial economy, the motion to 

consolidate (seq. no. 002) is granted. 

Accordingly, it is hereby: 

ORDERED that Defendant NYSID's motion to consolidate (seq. 

no. 002) is granted; 

ORDERED that Mohamed Ghanem v New York State Industries for 

Disabled, Inc., et al., Index No. 653612/2022 is hereby 

consolidated with Mohamed Ghanem v ACA Industries, Inc. d/b/a 

American Maintenance, Inc., et al., Index No. 450089/2022; 

65361212022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. 

ETAL 

Motion No. 002 

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ORDERED that all documents electronically filed via NYSCEF in 

Ghanem, Index No. 653612/2022 are hereby incorporated into Ghanem, 

Index No. 450089/2022, and the Clerk of New York County is directed 

to consolidate the file assigned Index No. 653612/2022 into the 

file assigned Index No. 450089/2022; 

ORDERED that the pleadings in each action shall stand as the 

pleadings in the consolidated action; and 

ORDERED that both matters are scheduled for a virtual Status 

Conference on September 9, 2024, at 11:30 A.M. in Part 42. 

This constitutes the decision and order of the court. 

Notify parties. 

t:fjajl~ DAE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

653612/2022 GHANEM, MOHAMED vs. NEW YORK STATE INDUSTRIES FOR DISABLED, INC. 

ETAL 

Motion No. 002 

D OTHER 

D REFERENCE 

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