Araujo v. Amelia

Full title: JUAN B. ARAUJO, Plaintiff, v. LOUIS AMELIA, COMPETITION IMPORTS…

Court: Supreme Court of the State of New York, Queens County

Date published: Sep 29, 2008

2008 N.Y. Slip Op. 32977 (N.Y. Sup. Ct. 2008)

Opinion

6656/08.

September 29, 2008.

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] PATRICIA P. SATTERFIELD, Judge.

The following papers numbered 1 to 17 read on this motion by defendant Competition Imports of Huntington: (1) for an Order, pursuant to CPLR § 510, transferring venue of this matter from Supreme Court, Queens County to Supreme Court, Suffolk County, on the ground that the venue chosen by plaintiff is improper for the purposes of trial of this action; and (2) pursuant to CPLR § 602, consolidating the within action, for the purpose of a joint trial, with all those actions that have been previously consolidated in Supreme Court, Suffolk County; and on this cross motion by defendants Louis Amelia and Adesa New York, LLC d/b/a Adesa Long Island, for the same relief.

PAPERS NUMBERED Notice of Motion-Affidavit-Exhibits .......... 1—4 Notice of Cross Motion-Affidavits-Exhibits .. 5—8 Affirmations in Opposition-Exhibits .......... 9—13 Reply Affirmation to Motion-Exhibits ........ 14—15 Reply Affirmation to Cross Motion .......... 16—17

Upon the foregoing papers, it is hereby ordered that the motion and cross and motion are resolved as follows:

This is one of approximately ten actions that have been commenced as a result of an incident occurring on July 22, 2005, involving a vehicle operated, out of control, into a group of bystanders who were in attendance at an automobile auction in Brookhaven, New York, a town in Suffolk County. Eight of the ten actions previously were consolidated for purposes of a joint trial by Justice Gary Weber in the Supreme Court, Suffolk County. Defendant Competition Imports of Huntington now moves, and defendants Louis Amelia and Adesa New York, LLC d/b/a Adesa Long Island cross move for an order transferring venue of this action from the Supreme Court, Queens County to the Supreme Court, Suffolk County, and consolidating the within action, for the purpose of a joint trial, with all actions previously consolidated in Supreme Court, Suffolk County.

Although the place of trial generally is determined by the residency of the parties [see, Doe v. Hall, 36 A.D.3d 651 (2^nd Dept. 2007)], where, as here, "common questions of law or fact exist, a motion to consolidate pursuant to CPLR 602(a) should be granted absent a showing of prejudice to a substantial right by the party opposing the motion (citations omitted). In addition, where actions commenced in different counties are consolidated pursuant to CPLR § 602, the venue should be placed in the county where the first action was commenced, unless special circumstances exist (citations omitted)." Nigro v. Pickett, 39 A.D.3d 720 (2^nd Dept. 2007); Kally v. Mount Sinai Hosp., 44 A.D.3d 1010 (2^nd Dept. 2007); Moor v. Moor, 39 A.D.3d 507 (2^nd Dept. 2007); see, also, Best Price Jewelers.Com, Inc. v. Internet Data Storage Systems, Inc., 51 A.D.3d 839 (2^nd Dept. 2008); Gadelov v. Shure, 274 A.D.2d 375 (2^nd Dept. 2000);Gomez v. Jersey Coast Egg Producers, Inc., 186 A.D.2d 629 (2^nd Dept. 1992). "Consolidation is appropriate where it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts (citations omitted)." Viafax Corp. v. Citicorp Leasing, Inc., ___ A.D.3d ___, ___ N.Y.S.2d ___, 2008 WL 4256226 (2^nd Dept. 2008); Best Price Jewelers.Com. Inc. v. Internet Data Storage Systems, Inc., supra

A review of the record indicates that the interests of justice and judicial economy would be served by consolidation of this action for joint trial with the actions referenced below, since all actions concern the same parties, the claims arise out of the same circumstances, and the proof with respect to each action will overlap and turn on credibility determinations of the nature of the relationship of the parties. See,Perini Corp. v. WDF, Inc., 33 A.D.3d 605 (2^nd Dept. 2006). Plaintiffs opposition fails to demonstrated that any prejudice to a substantial right would result from consolidation. See, CPLR 602(a); Perini Corp. v. WDF, Inc., supra.

Accordingly, because the first action was commenced in Suffolk County, and there are no special circumstances which would warrant placement of venue elsewhere, the motion to change the venue of the consolidated actions is granted, and it is hereby

ORDERED, that defendants' motion and cross motion for an order consolidating this action for the purposes of a joint trial with the actions now pending in the Supreme Court of the State of New York, County of Suffolk is granted, and it is further

ORDERED, that the title of the actions combined for joint trial shall be: and it is further

ORDERED, that the motion for changing the place of trial of the instant action hereby is granted; and it is further

ORDERED, that the place of trial of the instant action shall be changed from the Supreme Court, County of Queens, to the Supreme Court, County of Suffolk; and it is further

ORDERED, that the Clerk of this Court, upon being served with a copy of this order with notice of entry and payment of any required fees, if any, is directed to transfer all papers filed in her office in the instant action pending under Index No. 6656/08 to the Clerk of Suffolk County; and it is further ORDERED, that this action shall be disposed of in the Supreme Court, Suffolk County, as though commenced in that Court; and it is further

ORDERED, that a copy of this Order with Notice of Entry shall be served upon all parties to this action.