Opinion
2014-02-5
Maria CUSUMANO, respondent, v. Dominick CUSUMANO, et al., appellants.
Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson of counsel), for appellants. Howard L. Sherman, Ossining, N.Y., for respondent.
Anthony A. Capetola, Williston Park, N.Y. (Robert P. Johnson of counsel), for appellants. Howard L. Sherman, Ossining, N.Y., for respondent.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
In an action, inter alia, to impose a constructive trust, the defendants appeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated April 9, 2013, which denied their motion pursuant to CPLR 602(a) to consolidate this action with two proceedings, both entitled Matter of Cusumano v. Cusumano, pending in the Family Court, Suffolk County, under Docket Nos. F–06045–12/12B and F–06045–12/12C, respectively, or, in the alternative, for a joint trial.
ORDERED that the order is modified, on the law, on the facts, and in the exercise of discretion, with costs, by deleting the provision thereof denying that branch of the defendants' motion which was pursuant to CPLR 602(a) to join this action for trial with two proceedings entitled Matter of Cusumano v. Cusumano, pending in the Family Court, Suffolk County, under Docket Nos. F–06045–12/12B and F–06045–12/12C, respectively, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, and the Clerk of the Family Court, Suffolk County, shall forthwith deliver to the Clerk of the Supreme Court, Suffolk County, all papers and certified copies of all minutes and entries in the proceedings entitled Matter of Cusumano v. Cusumano, pending in the Family Court, Suffolk County, under Docket Nos. F–06045–12/12B and F–06045–12/12C.
Where common questions of fact or law exist, a motion pursuant to CPLR 602(a) for consolidation or a joint trial should be granted absent a showing of prejudice to a substantial right by the party opposing the motion ( see Whiteman v. Parsons Transp. Group of N.Y., Inc., 72 A.D.3d 677, 678, 900 N.Y.S.2d 87;GAM Prop. Corp. v. Sorrento Lactalis, Inc., 41 A.D.3d 645, 646, 838 N.Y.S.2d 633). Additionally, consolidation or a joint trial is appropriate “where it 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” ( Viafax Corp. v. Citicorp Leasing, Inc., 54 A.D.3d 846, 850, 864 N.Y.S.2d 479).
Here, that branch of the defendants' motion which was pursuant to CPLR 602(a) to join this action for trial with two proceedings entitled Matter of Cusumano v. Cusumano, pending in the Family Court, Suffolk County, under Docket Nos. F–06045–12/12B and F–06045–12/12C, respectively, should have been granted. Common questions of law and fact exist between this action and the two proceedings pending in the Family Court. Furthermore, the plaintiff failed to show prejudice to a substantial right if the Family Court proceedings are tried jointly with this action. A potential delay in the plaintiff's Family Court contempt proceeding is not a sufficient basis upon which to deny that branch of the defendants' motion which was for a joint trial, as the Supreme Court can minimize any prejudice by taking steps to insure that discovery is expeditiously completed ( see Whiteman v. Parsons Transp. Group of N.Y., Inc., 72 A.D.3d at 678, 900 N.Y.S.2d 87;Perini Corp. v. WDF, Inc., 33 A.D.3d 605, 606, 822 N.Y.S.2d 295;Alsol Enters., Ltd. v. Premier Lincoln–Mercury, Inc., 11 A.D.3d 494, 496, 783 N.Y.S.2d 620;Fransen v. Maniscalco, 256 A.D.2d 305, 306, 681 N.Y.S.2d 310).
In the interest of justice and judicial economy, and to avoid inconsistent determinations, this action should be tried jointly with the two pending Family Court proceedings ( see Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506, 506–507, 970 N.Y.S.2d 311). A joint trial, rather than consolidation, is appropriate here, since this action contains parties who are not parties in the Family Court proceedings ( see Matter of Joseph J., 106 A.D.3d 1004, 1006–1007, 965 N.Y.S.2d 588;Mas–Edwards v. Ultimate Servs., Inc., 45 A.D.3d 540, 541, 845 N.Y.S.2d 414;Cola–Rugg Enters. v. Consolidated Edison Co. of N.Y., 109 A.D.2d 726, 486 N.Y.S.2d 43).