Opinion
05-11-2017
Leslie TUCKETT, Plaintiff, v. The Wavecrest Management Team Ltd. and Greater Centennial Homes Housing Development Fund Company, Inc., a/k/a Greater Centennial Homes, Defendants. Leslie Tuckett, Plaintiff, v. THE WAVECREST MANAGEMENT TEAM LTD., Greater Centennial Homes Housing Development Fund Company, Inc., a/k/a Greater Centennial Homes, and Aaron Harris, Defendants.
Gjoni Law, by Gencian Gjoni, Esq., New York, for Plaintiff. Smith Mazure Director Wilkins Young & Yagerman, P.C., by Alexandra E. Davidson, Esq., New York, for Defendants in Both Actions.
Gjoni Law, by Gencian Gjoni, Esq., New York, for Plaintiff.
Smith Mazure Director Wilkins Young & Yagerman, P.C., by Alexandra E. Davidson, Esq., New York, for Defendants in Both Actions.
SALVATORE J. MODICA, J.
Papers Numbered ECF docs. 18–39
The Court is presented with two motions. Under motion sequence number 2, the defendants make a garden variety discovery motion in action number 1, also requesting that the action be struck from the trial calendar.
The more interesting legal issue is under motion sequence number 3, where the plaintiff seeks a consolidation of two separate claims involving many, but not all, of the same parties.
Turning first to motion sequence number 3, plaintiff seeks a consolidation of two actions: the first, a negligence action for a slip-and-fall, and the second, an alleged assault. The incidents are separate and do not come from the same operative set of facts. However, the bodily part that was allegedly injured is the same in each case.
The defendants are vehemently opposed to consolidation. The plaintiff is just as strident, even claiming that failure to consolidate would amount to reversible error. Plaintiff continues that defendants are bent on gamesmanship. Specifically, plaintiff claims that defendants are bent on a strategy of blaming the alleged injuries of plaintiff on the other set of facts, and only consolidation can prevent this prejudicial result from occurring. No one advocates for a joint trial.
It would have well-behooved each side to save the spear-throwing and engage in real legal research that could have aided this Court in determining the right result. Counsel for both sides cite cases, but none are on point. Instead, as this and other courts around the nation are already too accustomed, lawyers treat the courts as depositories or dumping grounds, thinking judges and their court attorneys will do the factual and legal research for them. See, Gomez v. Home Depot U.S.A., Inc., 2016 IL App (1st) 151229–U, 2016 WL 6585025 (Ill App.Ct. 1st Dist.2016) ("This court is not a depository in which the appellant may dump the burden of argument and research.").
The Second Department just recently, in Longo v. Fogg, ––– A.D.3d ––––, 2017 WL 1657508, at *2, 2017 N.Y. Slip Op. 03503 (2nd Dept.2017), decided that the appropriate remedy in the type of case here presented is a joint trial. The Second Department, in pertinent part, stated:
The plaintiff commenced two separate actions against the respondents, among others. In the first action, commenced on January 23, 2012, in the Supreme Court, Queens County, under Index No. 700116/12, the plaintiff alleged that on March 7, 2011, he sustained serious injuries to his cervical, thoracic, and lumbar spines, his left shoulder, his left knee, and his left hip when the respondents' bus collided with his vehicle in Queens. In the second action, commenced on November 29, 2012, in the Supreme Court, Bronx County, under Index No. 22988/12, the plaintiff alleged that on December 15, 2011, he sustained exacerbation of injuries to his cervical, thoracic, and lumbar spine, his left shoulder, his left knee, and his left hip when his vehicle collided with the respondents' bus in the Bronx. The plaintiff was treated by the same medical providers after both accidents.
Where common questions 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 (see Brown v. Cope Bestway Express, Inc., 99 A.D.3d 746, 952 N.Y.S.2d 220 ; Alizio v. Perpignano, 78 A.D.3d 1087, 1088, 912 N.Y.S.2d 132 ; Mas–Edwards v. Ultimate Servs., Inc., 45 A.D.3d 540, 845 N.Y.S.2d 414 ).
In view of the plaintiff's allegations in his bill of particulars 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 Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d 506, 970 N.Y.S.2d 311 ; Mackey v. County of Suffolk, 67 A.D.3d 973, 974, 888 N.Y.S.2d 774 ; Romandetti v. County of Orange, 289 A.D.2d 386, 734 N.Y.S.2d 629 ; Gabran v. O & Y Liberty Plaza Co., 174 A.D.2d 708, 571 N.Y.S.2d 557 ). The respondents failed to demonstrate prejudice to a substantial right if this action is tried jointly (see Cieza v. 20th Ave. Realty, Inc., 109 A.D.3d at 507, 970 N.Y.S.2d 311 ; Mackey v. County of Suffolk, 67 A.D.3d at 974, 888 N.Y.S.2d 774 ). Although the plaintiff moved to consolidate the two actions, the appropriate procedure is a joint trial, particularly since each action contains a defendant not present in the other (see Whiteman v. Parsons Transp. Group of NY, Inc., 72 AD3d 677, 678 ; Cola—Rugg Enters., Inc. v. Consolidated Edison Co. of NY, 109 A.D.2d 726, 486 N.Y.S.2d 43 ; Mascioni v. Consolidated R.R. Corp., 94 A.D.2d 738, 462 N.Y.S.2d 491 ).
Longo v. Fogg, ––– A.D.3d ––––, 2017 WL 1657508, at *2, 2017 N.Y. Slip Op. 03503, supra . Compare Longo v. Fogg, ––– A.D.3d ––––, 2017 WL 1657508, at *2, supra , with Gillard v. Reid, 145 AD3d 446 (1st Dept.2016) (joint trial for unrelated motor vehicle negligence action, premises liability action, and medical malpractice action, involving same plaintiff, was not warranted; motor-vehicle negligence action was ready for trial while other two actions were still in discovery, and cases involved different facts, witnesses, claims, injuries, and defendants, and thus there was real risk of jury confusion).
In the present case, applying the Second Department holding in Longo v. Fogg, the appropriate remedy is not consolidation, but a joint trial of the two actions.
In light of the joint trial order, the motion for discovery, under motion sequence number 2, becomes important. Defendants seek to strike the plaintiff's case from the trial calendar. In Action Number 2, the more recent action for alleged assault, the defendants have made a motion to dismiss the complaint that is still sub judice before another Justice of this Court. In Action Number 1, the case is scheduled for trial on July 18, 2017. These facts show how intertwined and thorny issues of discovery, joint trial, and discovery can be. Compare Longo v. Fogg, ––– A.D.3d ––––, 2017 WL 1657508, at *2, supra , with Gillard v. Reid, 145 AD3d 446, supra.
This Court will not let the wheels of justice grind to halt by the tactic of serial motion practice designed to drive plaintiff's counsel into exasperation or desperation. In motion sequence number 2, the branch of the motion to strike the note of issue is granted, and the remainder of the motion seeking discovery is granted only to the extent that counsel in both actions shall call the Compliance Settlement and Conference Part ("CSCP") [718–298–1089] to schedule a discover conference and discuss imposing a stay so that discovery can be done and completed. The Court thus hereby ORDERS as follows:
The above-captioned two actions shall be tried jointly in this Court. Separate Index Numbers, Requests for Judicial intervention, and Notes of Issue shall be filed for each action.
Each party shall be entitled to enter a separate Bill of Costs, if costs are allowed.
The trial shall proceed in the following order listed above: 707508/2015, followed by 707367/2016. The actions combined for joint trial are reflected in the above-stated caption.
And it is further
Ordered that plaintiff's counsel shall serve a copy of this order bearing the Clerk's dated stamp of its entry together with Notice of Entry be served on ALL PARTIES to the actions combined for joint trial, and, at the time of filing the Notes of Issue, on the Clerk of the Trial Term Office.
And it is further
Ordered that the note of issue in Action Number 1 is stricken, and counsel in both actions shall schedule a conference with CSCP, at the courthouse, at 88–11 Sutphin Boulevard, Jamaica, New York 11435.
The foregoing constitutes the decision, order, and opinion of the Court.