Opinion
13142N Index No. 153101/18 Case No. 2020-1700
02-16-2021
William KUKIELKA et al., Plaintiffs, v. Ralph SANTANA et al., Defendants. Fairmont Insurance Brokers, Ltd., NonParty Appellant.
Babchik & Young, LLP, White Plains (Lapo Torrini od counsel), for appellant.
Babchik & Young, LLP, White Plains (Lapo Torrini od counsel), for appellant.
Manzanet–Daniels, J.P., Webber, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Francis A. Kahn III, J.), entered January 17, 2020, which granted plaintiffs' motion to consolidate two actions, unanimously reversed, on the law, without costs, and the motion denied.
"[T]here is a preference for consolidation in the interest of judicial economy where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" ( Geneva Temps, Inc. v. New World Communities, Inc., 24 A.D.3d 332, 334, 806 N.Y.S.2d 519 [1st Dept. 2005] ). "[D]eference is accorded to the motion's court discretion" ( Lema v. 1148 Corp., 176 A.D.3d 653, 654, 111 N.Y.S.3d 300 [1st Dept. 2019] ; see CPLR 602[a] ).
Here, the motion court should not have found common questions of law and fact warranting invocation of CPLR 602(a) for a joint trial of these actions (see County of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691, 962 N.Y.S.2d 648 [2d Dept. 2013] ). The two actions involve different issues, namely, the negligence claims against defendants Ralph Santana and Jessica Liefer, and the breach of contract and professional malpractice claims against the insurance broker, defendant Fairmont Insurance Broker, Ltd. (Fairmont). Furthermore, consolidation could result in jury confusion and prejudice to Fairmont (see Kelly v. Yannotti, 4 N.Y.2d 603, 607, 176 N.Y.S.2d 637, 152 N.E.2d 69 [1958] ). The jury could be more disposed to resolve the question of procuring adequate insurance coverage against Fairmont, the insurance broker, especially if it sought to render a verdict in favor of plaintiffs (see id. ; Hershfeld v. JM Woodworth Risk Retention Group, Inc., 164 A.D.3d 1423, 1424–1425, 85 N.Y.S.3d 81 [2d Dept. 2018] ; see also Hoffman v. Kew Gardens Hills Assoc., 187 A.D.2d 379, 379, 590 N.Y.S.2d 99 [1st Dept. 1992] ).