Opinion
2017–01094 Index Nos. 10238/10, 61934/14, 17269/15
05-01-2019
Kim TAFOLLA, Plaintiff, v. ALDRICH MANAGEMENT CO., LLC, Appellant, et al., Defendant. (Action No. 1) Kim Tafolla, Plaintiff, v. David J. Weissberg, etc., Respondent. (Action No. 2) Kim Tafolla, Plaintiff, v. Louann Fiorentine, Defendant. (Action No. 3)
Baker Greenspan & Bernstein, Bellmore, N.Y. (Robert L. Bernstein, Jr., Bellmore and Evan E. Richards of counsel), for appellant. Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, N.Y. (Robert E. Fein of counsel, Elmsford), for respondent.
Baker Greenspan & Bernstein, Bellmore, N.Y. (Robert L. Bernstein, Jr., Bellmore and Evan E. Richards of counsel), for appellant.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford, N.Y. (Robert E. Fein of counsel, Elmsford), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.
DECISION & ORDERORDERED that the order dated November 29, 2016, is affirmed insofar as appealed from, with costs.
The plaintiff allegedly injured her neck and her right ankle when she slipped and fell in a parking lot of a strip mall owned by Aldrich Management Co., LLC (hereinafter Aldrich). The plaintiff commenced Action No. 1 against Aldrich and Dunkin Donuts, Inc. (hereinafter Dunkin), a tenant occupying space at the mall, seeking damages for negligent maintenance of the property. Subsequently, the plaintiff commenced Action No. 2, sounding in medical malpractice, against David J. Weissberg, alleging that while performing an independent medical examination on behalf of the insurance companies in Action No. 1, Weissberg manipulated the plaintiff's right ankle and caused a further injury to the ankle. The plaintiff also commenced Action No. 3 to recover damages for injuries allegedly sustained in a motor vehicle accident that was unrelated to the alleged slip-and-fall incident. The plaintiff moved, and Aldrich and Dunkin separately moved, to consolidate the actions, and Weissberg opposed the motions. The Supreme Court granted the motions to consolidate. Thereafter, Weissberg moved to reargue and renew his opposition to the motions to consolidate. The court granted the motion to reargue and renew, and upon reargument and renewal, denied the motions to consolidate. Aldrich appeals from so much of the order as pertains to the consolidation of Action Nos. 1 and 2.
Contrary to Aldrich's contentions, the Supreme Court had jurisdiction to reconsider its prior order "regardless of statutory time limits concerning motions to reargue" ( Liss v. Trans Auto Sys. , 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 ; see Aridas v. Caserta, 41 N.Y.2d 1059, 1061, 396 N.Y.S.2d 170, 364 N.E.2d 835 ; Itzkowitz v. King Kullen Grocery Co., Inc. , 22 A.D.3d 636, 638, 804 N.Y.S.2d 350 ). Moreover, "[w]here common questions of law or fact exist, a motion to consolidate should be granted absent a showing of prejudice to a substantial right by the party opposing the motion" ( Kally v. Mount Sinai Hosp. , 44 A.D.3d 1010, 1010, 844 N.Y.S.2d 415 ; see Weiss & Biheller, MDSE, Corp. v. Preciosa USA, Inc. , 127 A.D.3d 1176, 5 N.Y.S.3d 909 ; Nigro v. Pickett, 39 A.D.3d 720, 833 N.Y.S.2d 655 ). However, a motion to consolidate should be denied where the two actions do not share common questions of law or fact (see New York Commercial Bank v. J. Realty F Rockaway, Ltd. , 108 A.D.3d 756, 757, 969 N.Y.S.2d 796 ; Weiss & Biheller, MDSE, Corp. v. Preciosa USA, Inc. , 127 A.D.3d at 1176, 5 N.Y.S.3d 909 ). Contrary to Aldrich's contention, Action Nos. 1 and 2 do not share common questions of law or fact.
Accordingly, the Supreme Court providently exercised its discretion in granting that branch of Weissberg's motion which was for leave to reargue his opposition to those branches of the motions which were to consolidate Action Nos. 1 and 2, and we agree with the court's determination, upon reargument, to deny those branches of the motions.
In light of our determination, we need not reach Aldrich's remaining contentions.
RIVERA, J.P., ROMAN, HINDS–RADIX and LASALLE, JJ., concur.