"Chess DuBrowa on site representing International Paving Systems. An informal meeting was called between CRS, J. Doherty, DuBrowa and superintendent of AVA regarding AVA's work procedures in installing latex modified concrete. Mr. DuBrowa recommended that AVA lower the vibrations on the screen to remove all standing water that exists behind the men installing the latex concrete. . . . Mr. DuBrowa would be on site for technical guidance during tomorrow's pour. (emphasis added).
An entry dated June 13, 1986, states: "DuBrowa on site providing technical guidance during latex placement. He said he would return from the job when Ramp No. 3 and 4 are ready." Id. Finally, defendant has submitted a letter from DuBrowa dated July 27, 1986 providing written recommendations to Mr. Gordon of CRS on the procedures to be followed for the placement of the LMC. Exhibit B attached to Doherty Affidavit.
Affiant Doherty also asserts that DuBrowa advised him that the New York State Department of Transportation ("NYSDOT") temperature specifications did not have to be strictly followed. Doherty Affidavit P 14. In reliance on that advice, AVA occasionally placed the LMC on days when the ambient temperature fell below 45 degrees or was in excess of 85 degrees. Id. Also in reliance on IPS' advice and contrary to NYSDOT specifications, AVA did not cover the LMC with burlap within thirty minutes of its placement. Id.3
According to a report prepared by Lev Zetlin Associates, the placement of LMC at excessively high temperatures and the failure to cover it with burlap shortly after its placement was a cause of the cracking and delaminations. Carbone Affidavit P 15 (citing Exhibit 8 attached to Mackey Affidavit at pp. 36-37). In fact, the product bulletin from Reichhold Chemical Inc., the manufacturer who supplied IPS with the LMC, states that the LMC "should be placed when temperatures are between 50 and 80 degrees [Fahrenheit]" and "it is usually necessary to cover the product with wet burlap and plastic sheeting as soon as the surface is set." Exhibit C attached to Doherty Affidavit at p. 2.
In sum, it is defendants' position that any alleged defects in the LMC may have resulted from either the incorrect technical assistance rendered by IPS to AVA, Van-Tulco and CRS or from the deficiency of the product itself. See Doherty Affidavit P 20.
In accordance with the mandate of Fed. R. Civ. P. 56, plaintiff in this case has identified materials which, in its view, demonstrate the absence of a genuine issue of material fact. Those materials are outlined above. Defendants have responded by offering materials, also described above, that demonstrate that there are factual issues demanding resolution prior to deciding this case as a matter of law. These factual issues, namely whether the material supplied by IPS was defective and/or whether IPS was involved in an advisory capacity with the placement of the LMC, are material to the instant action, in that they must be resolved to determine whether IPS is entitled to full payment on its contract with Van-Tulco.
Thus, having resolved all ambiguities against plaintiff, see Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987), and recognizing that summary judgment is disfavored, Sobel v. Yeshiva University, 477 F. Supp. 1161, 1166 (S.D.N.Y. 1979) (citing Heyman v. Commerce and Indus. Ins. Co., 524 F.2d 1317 (2d Cir. 1975)), this Court finds that there are genuine issues of fact that preclude the entry of summary judgment at this time. This Court need not reach the remainder of the parties' arguments. Plaintiff's motion is denied.
II. Motion for Consolidation of Actions
As noted, defendants have cross-moved to consolidate the instant action with the Related Action pending before this Court. Fed. R. Civ. P. 42(a) provides in relevant part as follows:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
The Court has broad discretion to consolidate actions, Moore v. Am. Telephone and Telegraph Communications, Inc., 1990 U.S. Dist. LEXIS 17444 (S.D.N.Y. 1990) (citing In re Adams Apple, Inc., 829 F.2d 1484, 1487 (9th Cir. 1987)), and may use that discretion to consolidate cases at the pretrial stage to serve judicial economy, as long as any confusion or prejudice that may result does not outweigh efficiency concerns. Johnson v. Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990). Actions consolidated under Rule 42(a) generally retain their separate identities in order to avoid any adverse impact on the rights of the parties. Moore, 1990 U.S. Dist. LEXIS 17444, (citing Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97, 77 L. Ed. 1331, 53 S. Ct. 721 (1933)).
"One of the primary objectives of consolidation is to prevent separate actions from producing conflicting results." Bank of Montreal v. Eagle Assoc., 117 F.R.D. 530, 533 (S.D.N.Y. 1987). As explained above, both this case and the Related Action concern the defective condition of the LMC at the Project and payment for the same. The actions differ only insofar as the instant action concerns the contractual relationship between IPS and Van-Tulco, whereas in the Related Action, AVA is suing Van-Tulco for the money due on its subcontract, and Van-Tulco has counterclaimed against AVA on the ground that AVA is responsible for the cracking and delamination. Because IPS provided the LMC pursuant to a sub-subcontract with AVA, IPS' responsibility for the cracking and delamination may be integral to a determination of AVA's responsibility. Thus, both actions involve the same issues of fact and law: What entity or entities is responsible for the cracking and delamination and which parties, if any, should recover on their contracts.
If this Court does not consolidate these actions, IPS could, in theory, obtain payment for the LMC under the payment bond in this action. Then, in the Related Action, it may be determined that IPS was at least partially responsible for the cracking and delamination of the LMC. This would cause the very inconsistent verdicts that consolidation aims to avoid and would be an inefficient use of judicial resources.
The Court notes that plaintiff has not made a sufficient showing that prejudice would result from the requested consolidation. However, if, as the case develops, such problems arise, the Court will address them at that time. Therefore, in the exercise of its discretion, and in an effort to avoid inconsistent verdicts, this Court hereby orders the consolidation of the above-captioned action with Donald J. Crecca, as Trustee in Bankruptcy for AVA Construction Inc., v. Van-Tulco, Inc. et al., 90 Civ. 532 (DRH), without prejudice to plaintiff to renew its application at a later date.
For the foregoing reasons, plaintiff's motion for summary judgment is denied and defendants' cross-motion for consolidation is granted. The Clerk of the Court is ordered to close 90-CIV-531 (DRH) and consolidate it with the instant action.
Dated: Brooklyn, New York
November 10, 1992
DENIS R. HURLEY, U.S.D.J.