Opinion
524636/18
02-19-2020
Amadou SOW, Plaintiff, v. Jayneisha BROOKS and Ean Holdings LLC, Defendants.
Action No. 1 Plaintiff Amadou Sow, Robert J. Renna, P.C., 26 Court Street, Ste. 303, Brooklyn, New York 11242 Defendants Action No. 1 & 2, Jayneisha Brooks and Ean Holdings LLC, Peter C. Reitano, Esq., Brand Glick & Brand, P.C., 600 Old Country Road, Ste. 440, Garden City, New York 11530 Defendant Bengal Limo Service, Inc., 37-11 Atkins Avenue, Apt. 2F, Brooklyn, New York 11208 Action No. 2 Plaintiffs Fatima Johnson, S.F., and J.F., Naccarato Law Firm P.C., 14 Wall Street, 20th Floor, New York, New York 10005
Action No. 1 Plaintiff Amadou Sow, Robert J. Renna, P.C., 26 Court Street, Ste. 303, Brooklyn, New York 11242
Defendants Action No. 1 & 2, Jayneisha Brooks and Ean Holdings LLC, Peter C. Reitano, Esq., Brand Glick & Brand, P.C., 600 Old Country Road, Ste. 440, Garden City, New York 11530
Defendant Bengal Limo Service, Inc., 37-11 Atkins Avenue, Apt. 2F, Brooklyn, New York 11208
Action No. 2 Plaintiffs Fatima Johnson, S.F., and J.F., Naccarato Law Firm P.C., 14 Wall Street, 20th Floor, New York, New York 10005
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on October 17, 2019, under motion sequence one, by defendants Jayneisha Brooks (hereinafter Brooks) and Ean Holdings, LLC (hereinafter Ean) (collectively as defendants), for an order pursuant to CPLR 602 (a) consolidating for joint trial and discovery the instant action with a personal injury action titled Fatima Johnson, et. al. v. Bengal Limo Service Inc. et. al. under Index Number 515177/19. The motion is unopposed.
Notice of Motion
Affirmation in Support
Exhibits A-C
BACKGROUND
On December 7, 2018, Amadou Sow (hereinafter Sow) commenced the instant action against Brooks and Ean to recover damages for personal injuries by electronically filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On February 19, 2018, Brooks and Ean jointly interposed an answer to the complaint.
On September 9, 2019, Brooks and Ean jointly interposed an answer in the matter of Fatima Johnson, S.F. and J.F. v. Bengal Limo Service Inc. et. al. bearing Index Number 515177/19 (hereinafter action No. 2).
MOTION PAPERS
Brooks and Ean's motion papers consist of a notice of motion, an affirmation of counsel and three exhibits labeled A through C. Exhibit A consists of multiple documents including Brooks and Ean's answer, a demand for a bill of particulars, a notice for discovery and inspection, a demand for insurance disclosure, a demand for trial authorizations, a Medicare/Medicaid discovery demand and a notice for electronic data and information all for the instant action. Exhibit B consists of copies of multiple documents including Brooks and Ean's answer with cross claims, demand for answers to cross claim, demand for a bill of particulars, notice for discovery and inspection, demand for expert information, notice for EBT, demand for insurance disclosure, demand for trial authorizations, Medicare/Medicaid discovery demand and a notice for electronic data and information all for Action No. 2. Exhibit C is a New York State Department of Motor Vehicles Police Accident Report dated December 22, 2016.
LAW AND APPLICATION
By the instant motion, Brooks, et al. seeks an order pursuant to CPLR 602 consolidating Action No. 1 and Action No. 2 for discovery and trial.
CPLR 602 provides as follows:
Consolidation (a) Generally. 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.
Where a common question of law or fact exist, a motion to consolidate or for a joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion ( Cromwell v. CRP 482 Riverdale Ave., LLC , 163 AD3d 626, 627 [2nd Dept 2018] ). The trial court has broad discretion in determining whether to order consolidation ( Hanover Ins. Group v. Mezansky , 105 AD3d 1000 [2nd Dept 2013] ). In exercising that discretion, the court has to consider that the interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact ( Hanover Ins. Group , 105 AD3d 1000 ).
Accordingly, where the actions to be joined involve dissimilar issues or disparate legal theories or where common questions of law or fact are lacking the court may deny the motion. (see Cromwell v. CRP 482 Riverdale Ave., LLC , 163 AD3d 626, 627-28 [2nd Dept 2018] ).
CPLR 2214 (c) provides in pertinent part that:
"Each party shall furnish to the court all papers served by him. The moving party shall furnish at the hearing all other papers not already in the possession of the court necessary to the consideration of the questions involved. [...] Only papers served in accordance with the provisions of this rule shall be read in support of, or in opposition to, the motion, unless the court for good cause shall otherwise direct."
Consequently, the omission of a document necessary to the determination of a motion may warrant its denial (see Wells Fargo Home Mortg., Inc. v. Mercer, 35 AD3d 728 [2nd Dept 2006] citing Alizio v. Perpignano , 225 A2d 723, 724-725 [2nd Dept 1996] ).
In the instant motion, although the defendants provided their answers and demands to the complaints, they did not annex the complaints of the actions they seek to consolidate. By not including these complaints, the defendants did not comply with the requirements of CPLR 2214 (c). Moreover, the court cannot determine whether there are common questions of law or fact in the instant actions to warrant consolidation or joint trial (see Cromwell, 163 AD3d at 627 ).
Therefore, the motion is denied without prejudice based on the deficiency of the moving papers. If either party moves for similar relief in the future, the movant should annex a copy of the instant decision and order.
CONCLUSION
Defendants Jayneisha Brooks and Ean Holdings, LLC for an order pursuant to CPLR 602 (a) consolidating for joint trial and discovery the instant action with a personal injury action titled Fatima Johnson, et. al. v. Bengal Limo Service Inc. et. al. under Index Number 515177/19 is denied.
The foregoing constitutes the decision and order of this court.