Opinion
Index No. No. 607679/16 22497/17E
09-03-2019
CLIVE A. PARKER and CLOVER GHANY, Plaintiff(s), v. JOSEPH JOHNS, LEE C. JOHNS, RACHEL K. WARREN and RICHARD J. WARREN, Defendant(s). CLIVE A. PARKER and CLOVER GHANY, Plaintiff(s) v. KAYLA M. RAKOWER, Defendant.
Unpublished Opinion
Motion Date 7.29.19
Submit Date 8.15.19
PRESENT: HON. JEFFREY S. BROWN JUSTICE
Jeffrey S. Brown, Judge
| The following papers were read on this motion: | Documents Numbered |
| Notice of Motion, Affidavits (Affirmations), Exhibits Annexed.......................... |
|
| Answering Affidavit............................................................................................. |
|
Plaintiffs move pursuant to CPLR 602 for an order consolidating for all purposes the instant action with an action presently pending in Bronx County under Index Number 22497/2017E.
CPLR § 602 (a) provides that consolidation among actions should be granted where there are common questions of law and/or fact. However, consolidation of actions should not be granted if doing so would prejudice a substantial right of the opposing party. Perini Corp. v WDF, Inc., 33 A.D.3d 605, 606 [2d Dept 2006], Best Price Jewelers.Com, Inc. v Internet Data Storage and Systems, Inc., 51 A.D.3d 839 [2d Dept 2008]). A court may order that two actions be consolidated in the interest of justice and judicial economy when two actions arise out of the same incident and where it is highly probable that the same witnesses and evidence will be presented at trial.
Plaintiff contends that the two actions arise out of a chain reaction motor vehicle accident that occurred on February 13, 2015. By its prior motion, the court noted that the accident involved four vehicles. The complaint in the Bronx County action indicates that the Kayla M. Rakower was the operator of the fourth vehicle. However, Action No. 1 already appears on the calendar for a pretrial conference and Action No. 2 remains in discovery. Accordingly, the court will join the actions for trial under both captions.
Plaintiffs contend that transfer under the Bronx County index number is appropriate and necessary for the convenience of the parties and witnesses but identifies no facts to support that contention. In fact, although Clive A. Parker is now identified as a Bronx resident, with an address at a Post Office Box, Clover Ghany is identified as a resident of Westchester County, Kayla Rakower is a resident of Suffolk County, and both the Johns and the Warrens are residents of Nassau County. The accident did not occur in the Bronx, but rather on the Cross Island Parkway. The Warren defendants oppose consolidation in Bronx County and, instead, advocate consolidation in this county. The action was first commenced in this county and, absent any special circumstances, it ought to remain here. (See Moor v Moor, 39 A.D.3d 507 [2d Dept 2007]).
For the foregoing reasons, it is hereby
ORDERED, that the two pending actions, Nassau County Index No. 607670/2016 (Action No. 1) and Bronx County Index No. 22497/2017E (Action No. 2) shall be joined for trial only under both captions in Nassau County and it is further
ORDERED that Action No. 2 is removed to Nassau County and joined for trial with Action No. 1; and it is further
ORDERED, that the Clerk of Supreme Court, Bronx County is directed to transfer its file to the Clerk of Supreme Court, Nassau County, and upon transfer the Clerk shall assign it a Nassau County index number.
ORDERED, that the joined actions shall bear the caption:
ORDERED, that all matters of trial practice, including the right to open and close, are reserved to the justice presiding at the joint trial, and it is further, ORDERED, that all papers shall reflect the joint status of these actions, and it is further, ORDERED, upon completion of discovery, the parties shall file separate notes of issue and certificates of readiness, as to each action and its further, ORDERED, that each party shall be entitled to enter separate judgments and bill of costs and disbursements, in each action respectively, if costs are allowed, and it is further, ORDERED, that the court may direct separate trials in the event that an index number, RJI, note of issue and statement of readiness is not filed in either action.
This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied.