Clark v. Clark

• Decision Date: 27 March 2012
• Citation: 2012 N.Y. Slip Op. 02280,93 A.D.3d 812,941 N.Y.S.2d 192
• Parties: Winifred CLARK, etc., respondent-appellant, v. James CLARK, Jr., appellant-respondent. (Action No. 1)Winifred Q. Clark, respondent-appellant, v. James Clark, Jr., appellant-respondent. (Action No. 2)James P. Clark, Jr., appellant-respondent, v. Winifred Q. Clark, respondent-appellant, et al., defendant. (Action No. 3).
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02280

93 A.D.3d 812

941 N.Y.S.2d 192

Winifred CLARK, etc., respondent-appellant,

v.James CLARK, Jr., appellant-respondent. (Action No. 1)Winifred Q. Clark, respondent-appellant,

v.James Clark, Jr., appellant-respondent. (Action No. 2)James P. Clark, Jr., appellant-respondent,

v.Winifred Q. Clark, respondent-appellant, et al., defendant. (Action No. 3).

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

March 27, 2012.

Lichter Gliedman Offenkrantz, P.C., New York, N.Y. (Ronald J. Offenkrantz of counsel), and Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Brian Michael Seltzer of counsel), for appellant-respondent (one brief filed).

Rosenberg Calica & Birney LLP, Garden City, N.Y. (Ronald J. Rosenberg of counsel), and Butler, Fitzgerald, Fiveson & McCarthy, New York, N.Y. (David Fiveson of counsel), for respondent-appellant (one brief filed).

MARK C. DILLON, J.P., ARIEL E. BELEN, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for breach of fiduciary duty (Action No. 1), which was joined for trial with related actions (Action Nos. 2 and 3), James Clark, Jr., the defendant in Action Nos. 1 and 2 and the plaintiff in Action No. 3, appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Nassau County (Warshawsky, J.), dated February 23, 2010, as denied his motion pursuant to CPLR 3211(a)(4) to dismiss the complaint in Action No. 2 and granted those branches of the cross motion of Winifred Clark, the plaintiff in Action Nos. 1 and 2 and a defendant in Action No. 3, which were, in effect, to join Action Nos. 1, 2, and 3 for trial and to place venue of the joint trial in Nassau County, and (2) an order of the same court dated August 4, 2010, as denied that branch of his separate motion which was to compel the production of certain documents withheld by Winifred Clark based upon attorney-client privilege and work product privilege, and denied that branch of his separate motion which was, in effect, for summary judgment dismissing the complaint in Action No. 1 as time-barred, and Winifred Clark cross-appeals, as limited by her brief, from so much of the order dated August 4, 2010, as denied that branch of her cross motion which was for leave to amend her answer in Action No. 3 to include a defense based upon the statute of frauds.

ORDERED that the order dated February 23, 2010, is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of Winifred Clark, the plaintiff in Action Nos. 1 and 2 and a defendant in Action No. 3, which was to place venue of the joint trial in Nassau County and substituting therefor a provision denying that branch of the cross motion and fixing venue of the joint trial in Queens County; as so modified, the order dated February 23, 2010, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the order dated August 4, 2010, is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the cross motion of Winifred Clark, the plaintiff in Action Nos. 1 and 2 and a defendant in Action No. 3, which was for leave to amend her answer in Action No. 3 to include a defense based upon the statute of frauds and substituting therefor a provision granting that branch of the cross motion, and (2) by deleting the provision thereof denying that branch of the motion of James Clark, Jr., the defendant in Action Nos. 1 and 2 and the plaintiff in Action No. 3, which was to compel the production of certain documents withheld by Winifred Clark based upon attorney-client privilege and work product privilege, and substituting therefor a provision granting that branch of the motion to the extent of directing Winifred Clark to provide the Supreme Court with a detailed privilege log; as so modified, the order dated August 4, 2010, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Nassau County, and the Clerk of the Supreme Court, Nassau County, shall deliver to the Clerk of the Supreme Court, Queens County, all papers filed in this action and certified copies of all minutes and entries ( see CPLR 511[d] ), and for an in camera review thereafter by the Supreme Court, Queens County, of the allegedly privileged documents in accordance herewith.

James Clark, Jr., the defendant in Action Nos. 1 and 2 and the plaintiff in Action No. 3 (hereinafter James), and his brother William Clark jointly owned certain pieces of property in Brooklyn and Queens, which they managed through a partnership. After William died in 1994, his wife Winifred Clark, the plaintiff in Action Nos. 1 and 2 and a defendant in Action No. 3 (hereinafter Winifred), inherited his ownership interest in the properties. Two of the properties were placed in a trust with Winifred entitled to income during her lifetime. James continued to manage the properties through the partnership and provided Winifred with certain income from the properties. Around 2007, Winifred suspected that James was withholding income from her and that she had not received an interest in all of the properties that had been owned by William.

Subsequently, Winifred commenced an action on behalf of the trust against James in Nassau County (hereinafter Action No. 1), seeking an accounting and to recover damages for breach of fiduciary duty and unjust enrichment. Thereafter, she commenced a second action against James in Nassau County (hereinafter Action No. 2), inter alia, to recover damages for breach of a joint venture agreement, conversion, and fraud. James then commenced an action against Winifred and her brother in Queens County (hereinafter Action No. 3), among other things, to quiet title to three pieces of real property in Queens which he alleged were owned 100% by him, and that Winifred had improperly transferred to herself.

“[A] motion seeking a joint trial pursuant to CPLR 602(a) rests within the sound discretion of the trial court. When there are common questions of law or fact, a joint trial is warranted unless the opposing party demonstrates prejudice to a substantial right” ( Alizio v. Perpignano, 78 A.D.3d 1087, 1088, 912 N.Y.S.2d 132 [citations and internal quotation marks omitted]; see Pierre–Louis v. DeLonghi Am., Inc., 66 A.D.3d 855, 856, 887 N.Y.S.2d 632; Glussi v. Fortune Brands, 276 A.D.2d 586, 587, 714 N.Y.S.2d 516). Here, the Supreme Court providently exercised its discretion in granting that branch of Winifred's cross motion which was, in effect, to join Action Nos. 1, 2, and 3 for trial because the actions involve common questions of law and fact, and James failed to show that prejudice would result from a joint trial. Accordingly, we find that the interests of justice and judicial economy would be served by a joint trial ( see Alizio v. Perpignano, 78 A.D.3d at 1088, 912 N.Y.S.2d 132; J & A Vending v. J.A.M. Vending, 268 A.D.2d 505, 506, 703 N.Y.S.2d 53).

However, the Supreme Court erred in granting that branch of Winifred's cross motion which was, in effect, to place venue of the joint trial in Nassau County. “Generally, where actions commenced in different counties have been consolidated pursuant to CPLR 602, the venue should be placed in the county where the first action was commenced, unless special circumstances are present” ( Gomez v. Jersey Coast Egg Producers, 186 A.D.2d 629, 630, 588 N.Y.S.2d 589; see Strasser v. Neuringer, 137 A.D.2d 750, 751, 524 N.Y.S.2d 830). However, in an action affecting title to, or the possession, use, or enjoyment of, real property, “CPLR 507 mandates that the venue for such an action be the county in which...