Opinion
160945/2016
01-02-2018
Valentina LIZ, Plaintiff, v. 158–160 VERMILYEA, LLC, Defendant.
ELISSA SPERN SCHWARTZ, By: ELISSA SPERN SCHWARTZ, Esq., 26 Court Street, Suite 901, Brooklyn, NY 11242, PLAINTIFF: Valentina Liz Lewis Brisbois Bisgaard & Smith, By: JENNIFER R. OXMAN, Esq., 77 Water Street, Rm 2100, New York, NY 10005, DEFENDANT: 158–160 Vermilyea, LLC
ELISSA SPERN SCHWARTZ, By: ELISSA SPERN SCHWARTZ, Esq., 26 Court Street, Suite 901, Brooklyn, NY 11242, PLAINTIFF: Valentina Liz
Lewis Brisbois Bisgaard & Smith, By: JENNIFER R. OXMAN, Esq., 77 Water Street, Rm 2100, New York, NY 10005, DEFENDANT: 158–160 Vermilyea, LLC
Robert R. Reed, J.
Upon the foregoing papers, it is ordered that this motion for consolidation is granted in part and denied in part.
In this personal injury action, defendant 158–160 Vermilyea, LLC. ("Vermilyea") moves to consolidate this action with another action pending in New York County Supreme Court under Index No. 156262/2017. Vermilyea asserts that both cases involve the same parties, the same premises and similar claims of negligence. In opposition, plaintiff Valentina Liz ("Liz") claims that the actions involve two distinct accidents, occurring three months apart from one another, that do not share any common questions of fact or law, and that a joint trial would be confusing to a jury.
"When actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay" (see CPLR 602(a) ). "Consolidation is generally favored by the courts in the interest of judicial economy and ease of decision making where there are common questions of law and fact, unless the party opposing the motion demonstrates that consolidation will prejudice a substantial right" (see Amtorg Trading Corp. v. Broadway & 56th St. Assoc. , 191 AD2d 212, 213 ). The burden of demonstrating prejudice to a substantial right is on the party opposing consolidation (see Sokolow, Dunaud, Mercadier & Carreras v. Lacher , 299 AD2d 64, 74 ).
Here, both actions involve the same parties and the same premises. Both parties acknowledge that plaintiff was treated at the same ER facility in both instances. Neither case has moved forward with discovery or any preliminary conferences. Consolidation of these two actions for joint discovery may, thus, tend to avoid unnecessary costs and delay in the gathering of documents and deposing of common witnesses. Given the three-month gap in time between the separate alleged slip and fall incidents, it is not clear, however, at this pre-discovery phase of these actions, that common questions of law exist or that such commonalities of fact as may exist are of particular relevance to the matters at dispute in the actions.
Accordingly, it is hereby
ORDERED that the motion is granted to the extent that the two actions are consolidated for purposes of joint discovery scheduling, conferencing and all pre-note proceedings; and it is further
ORDERED that the motion to consolidate is denied with respect to joint trial, without prejudice to renew after the close of discovery; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Part 43, located at 111 Centre Street, Room 581, on Thursday, January 25, 2018 at 10:00 a.m.