Opinion
February 2, 1967
Max E. Greenberg for claimant.
Louis J. Lefkowitz, Attorney-General ( William H. Keniry of counsel), for defendant.
This motion is made on behalf of the claimant for an order directing consolidation of the above-entitled claims, pursuant to CPLR 602 (subd. [a]), and for such other and further relief as may, after argument, be just and proper.
These claims, seven in number, all contain alleged causes of action arising out of contracts made between claimant and the State of New York, Department of Public Works, and subject to the Public Works Specifications of January 2, 1957. All of the contracts involved, with the exception of Claim No. 46051, were entered into between September and December, 1960, and four of the six were entered into on the very same day, viz., September 22, 1960. The contract concerning Claim No. 46051 was dated April 20, 1961. Although each contract called for work to be performed on separate highways in the State, they were, for the most part, contemporaneous, and the general provisions of the contracts were virtually identical.
Each of the claims contains causes of action for delay alleged to have been caused by the State, to recover engineering charges assessed by the State, and to recover for extra cost of engineering and design work which, it is claimed, should be borne by the State since they were made necessary by faulty plans and field changes. Thus, the questions of fact as to at least part of each claim will be substantially the same, that is, whether the State of New York did or failed to do any act which caused delay and increased charges and costs during the term of the contracts.
The motion, insofar as it seeks a consolidation of the claims, is denied.
However, it may fairly be assumed that the same witnesses may have to be used and that identical questions of law may have to be determined in many, if not all, of the claims. This being so, it is the opinion of the court that in order to avoid delay and extra expenses to both sides, these claims should be tried jointly under CPLR 602 (subd. [a]) with the understanding that the law and facts in each case will be considered separately and separate decisions made. Such a joint trial can be had without prejudice to the substantial rights of the parties herein, since the court can control the proof in the same manner as if the cases were consolidated. Accordingly, it is directed that the examinations before trial, bills of particulars and any other items of discovery be completed as though this were one action since, undoubtedly, many of the same parties will be questioned in each claim.
Let the order provide that the above-entitled claims be tried jointly, pursuant to CPLR 602 (subd. [a]) and that the Clerk of the court join all the claims on the calendar at the time the one bearing the earliest claim number is reached for trial.