Opinion
Nos. 2021-00382 2021-03268 Index No. 704713/18
06-29-2022
Scott Frank, appellant, v. Y. Mommy Taxi, Inc., et al., defendants; Marty Transport Corporation, et al., nonparty-respondents.
Parker Waichman, LLP, Port Washington, NY (Jay L. T. Breakstone and Stephenie L. Bross of counsel), for appellant. Litchfield Cavo, LLP, New York, NY (Paul J. Tramontano of counsel), for nonparty-respondents.
Parker Waichman, LLP, Port Washington, NY (Jay L. T. Breakstone and Stephenie L. Bross of counsel), for appellant.
Litchfield Cavo, LLP, New York, NY (Paul J. Tramontano of counsel), for nonparty-respondents.
MARK C. DILLON, J.P. FRANCESCA E. CONNOLLY, SHERI S. ROMAN, JOSEPH J. MALTESE, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), dated December 18, 2020, and (2) an order of the same court dated April 29, 2021. The order dated December 18, 2020, denied the plaintiff's motion pursuant to CPLR 602(a) to consolidate this action with an action entitled Frank v Marty Transport Corporation, pending in the Supreme Court, Queens County, under Index No. 708005/19. The order dated April 29, 2021, insofar as appealed from, upon renewal, adhered to the prior determination in the order dated December 18, 2020.
ORDERED that the order dated December 18, 2020, is reversed, on the law and in the exercise of discretion, the plaintiff's motion pursuant to CPLR 602(a) to consolidate this action with an action entitled Frank v Marty Transport Corporation, pending in the Supreme Court, Queens County, under Index No. 708005/19, is granted to the extent of directing that the actions shall be tried jointly, the motion is otherwise denied, and the order dated April 29, 2021, is vacated; and it is further, ORDERED that the appeal from the order dated April 29, 2021, is dismissed as academic in light of our determination on the appeal from the order dated December 18, 2020; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.
In March 2018, the plaintiff commenced this action against the defendants, Y. Mommy Taxi, Inc., and Mohammad Alam, to recover damages for injuries he allegedly sustained in an automobile accident on September 17, 2017. In May 2019, the plaintiff commenced an action against Marty Transport Corporation, Golden Touch Transportation of NY, Inc., Transdev Services, Inc., and Belayet Hossain (hereinafter collectively the respondents) to recover damages for injuries he allegedly sustained in an automobile accident on June 10, 2018. In October 2020, the plaintiff moved pursuant to CPLR 602(a) to consolidate the actions. The respondents opposed the motion. In an order dated December 18, 2020, the Supreme Court denied the plaintiff's motion to consolidate. In an order dated April 29, 2021, upon renewal, the court adhered to the determination in the order dated December 18, 2020. The plaintiff appeals from both orders.
Although a motion pursuant to CPLR 602(a) is addressed to the sound discretion of the Supreme Court (see Kaladze v Ocean Park Acquisition, L.P., 203 A.D.3d 1151, 1152; Rhoe v Reid, 166 A.D.3d 919, 921), consolidation or joinder for trial is favored to 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 (see Robinson v 47 Thames Realty, LLC, 158 A.D.3d 780, 781; Best Price Jewelers.Com, Inc. v Internet Data Stor. & Sys., Inc., 51 A.D.3d 839). Where common questions of law or fact exist, a motion pursuant to CPLR 602(a) "should be granted, absent a showing of prejudice to a substantial right by the party opposing the motion" (Disa Realty, Inc. v Rao, 198 A.D.3d 869, 871 [internal quotation marks omitted]; see Wilson v Perlman, 185 A.D.3d 984, 984).
Here, in view of the plaintiff's allegations that certain injuries which he sustained in the first automobile accident were exacerbated by the second automobile accident, in the interest of justice and judicial economy, and to avoid inconsistent verdicts, the two actions should be tried jointly (see Longo v Fogg, 150 A.D.3d 724, 725; Cieza v 20th Ave. Realty, Inc., 109 A.D.3d 506, 506). The respondents failed to demonstrate prejudice to a substantial right if the actions are tried jointly (see Alizio v Perpignano, 78 A.D.3d 1087, 1088; Mackey v County of Suffolk, 67 A.D.3d 973, 974). Although the plaintiff moved to consolidate the two actions, the appropriate procedure is a joint trial, particularly since the actions involve different defendants (see Longo v Fogg, 150 A.D.3d at 725; Whiteman v Parsons Transp. Group of N.Y., Inc., 72 A.D.3d 677, 678).
DILLON, J.P., CONNOLLY, ROMAN and MALTESE, JJ., concur.