Summary
permitting consolidation of products liability and medical malpractice actions in order to avoid inconsistent verdicts and conserve judicial resources
Summary of this case from Vanderzalm v. Sechrist Indus., Inc.Opinion
December 26, 1989
Appeal from the Supreme Court, Queens County (Zelman, J.).
Ordered that the order is reversed, with costs to the appellant payable by the respondents, the motion is granted, and action No. 2 is consolidated into action No. 1; and it is further,
Ordered that the matter is remitted to the Supreme Court, Queens County, for the making of an order in its discretion setting a schedule for the expeditious completion of all discovery in the consolidated action.
Although a motion pursuant to CPLR 602 (a) to consolidate two pending actions is addressed to the sound discretion of the trial court (see, T T Enters. v Gralnick, 127 A.D.2d 651, 652; Leung v Sell, 115 A.D.2d 929), consolidation is favored by the courts as serving the interests of justice and judicial economy (Mideal Homes Corp. v LC Concrete Work, 90 A.D.2d 789; see also, Heck v Waldbaum's Supermarkets, 134 A.D.2d 568). The motion to consolidate should be granted unless the opposing party succeeds in demonstrating prejudice to a substantial right (see, Matter of Vigo S.S. Corp. [Marship Corp.], 26 N.Y.2d 157, 161, cert denied sub nom. Snare Corp. v Vigo S.S. Corp., 400 U.S. 819; Chiacchia v National Westminster Bank, 124 A.D.2d 626, 628).
At bar, a common issue exists as to the extent to which each defendant is responsible for the injuries sustained by the infant plaintiff allegedly as the result of his mother's ingestion during pregnancy of a drug prescribed by the defendants in action No. 1 and manufactured and sold by the defendant in action No. 2 (see, Dolce v Jones, 145 A.D.2d 594; Heck v Waldbaum's Supermarkets, supra). Moreover, the plaintiffs have failed to demonstrate that prejudice to a substantial right would result from consolidation. Any alleged prejudice to the plaintiffs arising from the different procedural stages to which the two actions have progressed can be cured by the expeditious completion of discovery in action No. 2 (see, Chinatown Apts. v New York City Tr. Auth., 100 A.D.2d 824, 825). Consolidation should also prevent the injustice which would result if inconsistent verdicts were delivered in separate trials (see, Dolce v Jones, supra). Therefore, we substitute our discretion for that of the trial court by granting the motion for consolidation of the two actions. Thompson, J.P., Lawrence, Eiber and Balletta, JJ., concur.