Opinion
Index No.: 108906/10 Seq. No.: 001
03-22-2011
AMERICAN INTERNATIONAL INSURANCE COMPANY as subrogee of MARK ARMENANTE, Plaintiff, v. ALJER PLUMBING & HEATING CORP., D. HALLER INC., and THE RELIABLE AUTOMATIC SPRINKLER CO., INC., Defendants.
DECISION/ ORDER
PRESENT:
Hon. Judith J. Gische
J.S.C.
Recitation, as required by CPLR § 2219 [a] of the papers considered in the review of this (these) motion(s):
| Papers | Numbered |
| Def's n/m (consolidate) w/CV affirm, exhs | 1 |
Upon the foregoing papers, the decision and order of the court is as follows:
The court has before it a motion by defendant, Aljer Plumbing & Heating Corp. ("Aljer"), to consolidate the above captioned action ("Action 2"), with another, earlier commenced action, also pending in Supreme Court, New York County. The first action is American International Insurance Company as subrogee of Christopher Hamick v. Aljer Plumbing & Heating Corp., D. Haller, Inc. and The Reliable Automatic Sprinkler Co., Inc., Index No. 108905/10 ("Action 1"). Aljer seeks consolidation for purposes of discovery and joint trial pursuant to CPLR § 602. The basis for Aljer's motion for consolidation is that both cases arise out of the same incident, involve common questions of fact or law, and will require presentation of nearly identical evidence and evaluation by the jury.
Though Aljer has filed proof of service of this motion, neither plaintiff nor the other defendants have opposed it or appeared. Therefore, it is being submitted to the court, and being considered, on default.
The court has the discretion to order the consolidation of actions where common questions of law or fact exist. CPLR 602 [a]; Bradford v. John A. Coleman Catholic High School, 110 A.D.2d 965 (3d Dept. 1985). It is unnecessary that all the facts and issues be the same, but there must be "at least some important rules of law and fact in common to both actions." Bradford, supra at 966. Thus, while Action 1 and Action 2 do not need to be identical in every respect, individual issues should not predominate. Bender v. Underwood, 93 A.D.2d 747 (1st Dept. 1983). Where the actions arise from the same incident, have substantially the same facts and issues of law, and the same witnesses would testify at both trials if actions were tried separately, consolidation is appropriate. Burger v. Long Island Rail Road Company, 24 A.D.2d 509 (2d Dept. 1965) [different damages, but same collision, same witnesses].
Here, Actions 1 and 2 involve the same parties, arise out of the same operative set of facts and will require similar legal analysis. The motion has been submitted without opposition, and therefore, no one has demonstrated prejudice to a "substantial right" resulting from the consolidation (see Maiaur v, Saratoaian, 47 A.D.2d 982 [3d Dept. 1975]). Accordingly, the motion to consolidate is granted and Action 1 and 2 are hereby consolidated.
Conclusion
In accordance herewith, it is hereby:
ORDERED that the motion to consolidate is granted; and it is further
ORDERED that the action entitled American International Insurance Company as subrogee of Mark Armenante v. Aljer Plumbing & Heating Corp., D. Haller, Inc. and The Reliable Automatic Sprinkler Co., Inc., Index No. 108906/10 is hereby consolidated under American International Insurance Company as subrogee of Christopher Hamick v. Alier Plumbing & Heating Corp., D. Haller, Inc. and The Reliable Automatic Sprinkler Co., Inc., Index No. 108905/10, with the following caption: SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 10
AMERICAN INTERNATIONAL INSURANCE
COMPANY as subrogee of CHRISTOPHER HAMICK
and AMERICAN INTERNATIONAL INSURANCE
COMPANY as subrogee of MARK ARMENANTE, Plaintiffs,
v. ALJER PLUMBING & HEATING CORP., D. HALLER INC.,
and THE RELIABLE AUTOMATIC SPRINKLER CO., INC., Defendants.
Index No.: 108905/10
and it is further
ORDERED that upon service on the Clerk of the Court of a copy of this Order with Notice of Entry, the Clerk shall consolidate the papers in the actions hereby consolidated, and shall mark this consolidation in the Court's files; and it is further
ORDERED that a copy of this order with notice of entry shall also be served upon the Clerk of the Trial Support Office, who is hereby directed to mark the Court's records to reflect the consolidation; and it is further
ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further
ORDERED that any requested relief not expressly addressed herein has nonetheless been considered by the court and is hereby expressly denied; and it is further
ORDERED that this shall constitute the decision and order of the Court. Dated: New York, New York
March 22, 2011
So Ordered:
______________________________
HON. JUDITH J. GISCHE, J.S.C.