Real Property Law 235.[FN2] This claim was asseted by Respondents against
Petitioners via the second counterclaim in this proceeding, and the sixth cause of action in the
Supreme Court Action. Both claims are almost word for word identical, and seek the same relief,
between the same parties, for the same incident, based on the same theory of recovery. The sixth
cause of action was dismissed by Judge York in the Supreme Court Action, when he granted
summary judgment to Petitioner and its agents.
Respondents themselves asserted the identity of parties and issues when they moved for a
stay of this proceeding in the Supreme Court Action. On or about March 2007, Respondents
moved for an order in the Supreme Court Action staying this proceeding and for consolidation of
this proceeding with the Supreme Court Action.[FN3] In his March 19, 2007 affirmation in support
[*8]of said motion, Lee M. Nigen, Esq., asserts that all claims
originate out of the February 16, 2005 flood and that "plaintiffs are requesting that the Court
consolidate the several cases now pending between the parties since they all concern the same
facts (Nigen , Aff in Sup, March 19, 2007, par 8).
However, the moving papers were deficient, they failed to provide Supreme Court with the
index numbers of the cases for which consolidation was sought, the courts in which the cases
were pending, the status of the cases, or copies of any relevant pleadings. Based on these defects,
Judge York issued a decision dated April 26, 2007 denying the motion for stay or consolidation.
Judge York's decision provided in pertinent part "(t)he papers do not indicate the name of any
case and index number of the case it wishes to consolidate."
In fact, the March 2007 Stipulation essentially afforded Respondents the same