Opinion
No. 4677/13.
07-15-2014
Carlos VARGAS, Plaintiff, v. Brian A. LANCASTER, Beverly G. Christie, Marlon Gray And Christopher B. Brown, Defendants.
Frommer & Cerrato, LLP, Garden City, NY, for plaintiff. Chris M. Hatzis, Esq, Cheven, Keely & Hatzis, Esqs., New York, NY, for defendant Brian Lancaster. Martyn, Toher, Martyn & Rossi, Mineola, NY, for defendants Gray & Brown. James G. Bilello & Associates, Westbury, NY, for defendant Christie.
Frommer & Cerrato, LLP, Garden City, NY, for plaintiff.
Chris M. Hatzis, Esq, Cheven, Keely & Hatzis, Esqs., New York, NY, for defendant Brian Lancaster.
Martyn, Toher, Martyn & Rossi, Mineola, NY, for defendants Gray & Brown.
James G. Bilello & Associates, Westbury, NY, for defendant Christie.
Opinion
FRANCOIS A. RIVERA, J.
Recitation in accordance with CPLR 2219(a) of the defendant Brian A Lancaster's motion, filed on April 14, 2014, under motion sequence number one, for an order pursuant to CPLR 602 :(1) ordering a joint trial of the instant action with a subrogation action entitled Geico General Insurance Company a/s/o Beverly G. Christie v. Brian Lancaster in the Supreme Court of Queens County under Index Number 029615/13 and (2) directing the clerk of Queens County to transfer the file of Index number 029615/13 and all its papers to the clerk of Kings County.
—Notice of Motion
—Affirmation in support
—Exhibits A–B
BACKGROUND
On March 14, 2013, plaintiff Carlos Vargas commenced the instant action for damages for personal injuries by filing a summons and complaint with the Kings County Clerk's office. On September 26, 2013, Geico General Insurance Company a/s/o Beverly G. Christie commenced a subrogation action against Brian Lancaster in Queens County (hereinafter the Queens County action). The Queens County action arises out of the accident which is the subject of the instant action, and as such both actions involve common questions of law and fact. The motion is unopposed.
LAW AND APPLICATION
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. (b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district or justice court in the county and consolidate it or have it tried together with that in the county court.
A trial court has “wide discretion” to order or deny a joint trial. In exercising that discretion, the controlling principle is that “the interests of justice and judicial economy are better served by joint trials wherever possible” (Hanover Ins. Group v. Mezansky, 105 AD3d 1000 [2nd Dept 2013] [internal citations omitted] ). A motion to consolidate or join should be granted absent a showing of prejudice to a substantial right by a party opposing the motion (Id. ).Although prejudice may result from the two actions being tried before the same jury, since it will bring to the jury's attention the existence of insurance, any such prejudice is outweighed by the possibility of inconsistent verdicts if separate trials ensue (Hanover Ins. Group v. Mezansky, 105 AD3d 1000 [2nd Dept 2013] [internal citations omitted] ). Inasmuch as the motion is unopposed, no party has raised a claim that granting consolidation will cause substantial prejudice. Nor is the issue of substantial prejudice to any party apparent from the papers submitted by the movant. Consolidated actions are generally tried where the first action was commenced, although the placement of venue rests in the sound discretion of the motion court (see CPLR 602 ; Reckson Assoc. Realty Corp., v. Blasland, Bouck & Lee, Inc., 230 A.D.2d 723 [2nd Dept 1996]citing Strasser v. Neuringer, 137 A.D.2d 750, 751 [2nd Dept 1998] ). Inasmuch as the instant action was commenced before the Queens County action. The Queens County action will be joined for trial in Kings County.
CONCLUSION
Defendant Brian A. Lancaster's motion for an order pursuant to CPLR 602 seeking a joint trial of the instant action with the Queens County action is granted.Ordered, that each shall retain its own index number, file a separate RJI, separate notes of issue, and file separate judgements; and it is further,
Ordered, that the order in which the parties open and close shall be determined by the court, and it is further,
Ordered, that upon service of a copy of this order and payment of the requisite fees, the clerk of Queens County is directed to transfer the file of index No. 29615/13 and all papers contained therein to the clerk of Kings County; and it is further,
Ordered, that a copy of this order with notice of entry be served upon all parties in the action.The foregoing constitutes the decision and order of this Court.