Opinion
# 2019-028-565 Claim No. 128494 Motion No. M-92401
07-25-2019
CITY OF SYRACUSE v. THE STATE OF NEW YORK
HANCOCK ESTABROOK, LLP BY: Paul J. Tuck, Esq. and John G. Powers, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Edward F. McArdle, Esq. Assistant Attorney General and SMITH, SOVIK, KENDRICK & SUGNET, P.C. BY: Victor L. Prial, Esq.
Synopsis
Case information
| UID: | 2019-028-565 |
| Claimant(s): | CITY OF SYRACUSE |
| Claimant short name: | SYRACUSE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128494 |
| Motion number(s): | M-92401 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | HANCOCK ESTABROOK, LLP BY: Paul J. Tuck, Esq. and John G. Powers, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Edward F. McArdle, Esq. Assistant Attorney General and SMITH, SOVIK, KENDRICK & SUGNET, P.C. BY: Victor L. Prial, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | July 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on claimant's motion:
1. Notice of Motion to Consolidate and attached exhibits;
2. Memorandum of Law in Opposition to Motion to Consolidate; Attorney Affidavit and attached exhibits;
3. Correspondence, Edward F. McArdle, Assistant Attorney General.
By claim no. 128494, claimant the City of Syracuse ("Syracuse") seeks the apportionment of liability, contribution, and indemnification against defendant State of New York.
This action arose from a September 7, 2015 automobile accident that occurred on Burnet Avenue, near the intersection with S. Collingwood Avenue and the Interstate 690 on ramp, in Syracuse, New York. At the time of the accident, Lilian Cervantes ("Cervantes") and her daughter Stefanie Cervantes were rear-seated passengers in a vehicle that was allegedly struck by another vehicle.
Cervantes commenced an action in Supreme Court Onondaga County naming Syracuse as a defendant. Cervantes also brought a claim in the Court of Claims against the State, which is designated as claim number 127148.
Syracuse now moves for an order pursuant to Court of Claims Act § 9 (5) and CPLR 602 (a) to consolidate the two pending claims -- City of Syracuse v State of New York (claim no. 128494) and Cervantes v State of New York (claim no. 127148). Cervantes opposes the motion.
The full caption reads Lilian Cervantes, Individually and as Guardian of Stefanie Cervantes v State of New York.
By correspondence, the State informed the Court that it did not object to the application to consolidate.
CPLR 602 (a) provides that:
"[w]hen 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."
Section 9 (5) of the Court of Claims Act authorizes the Court:
"[t]o order two or more claims growing out of the same set of facts to be tried or heard together, with or without consolidation, whenever it can be done without prejudice to a substantial right."
"It is well established that the power to order consolidation rests in the sound discretion of the court, and that where common questions of law or fact exist, consolidation is warranted unless the party opposing consolidation demonstrates prejudice to a substantial right" (Berman v Greenwood Vil. Community Dev., 156 AD2d 326, 326-327 [2d Dept 1989]; see also Flower City Interiors v Rochester Gen. Hosp., 184 AD2d 998, 999 [4th Dept 1992]). Moreover, "consolidation is favored by the courts as serving the interests of justice and judicial economy" (Guasconi v Pohl, 2 AD3d 1202, 1203 [3d Dept 2003] [internal quotation marks and citations omitted]).
As both claims allege that the State was negligent in its failure to properly design, construct, and maintain its roadway and that such failure was the proximate cause of injuries suffered by Lilian and Stefanie Cervantes, it is clear that common questions of law or fact exist.
Cervantes' contention that Syracuse is attempting to join the Supreme Court action with the actions pending in this court, in contravention of the Court of Claims Act, is unavailing. First, as noted, both the CPLR and the Court of Claims Act authorize consolidation and joinder of two or more actions. Second, it is well settled that "if a defendant believes that it has been held liable in Supreme Court for what is actually the State's negligent conduct, the defendant can sue the State for contribution in the Court of Claims" (Artibee v Home Place Corp., 28 NY3d 739, 752 [2017]). On this score, the Court finds no basis in fact or the law that supports the argument advanced by Cervantes.
That being said, a review of the State's answer to the Syracuse claim raises a number of concerns that could adversely impact the Cervantes claim. Defendant's first, second and fourth affirmative defenses allege that the claim fails to state a cause of action against the State because the claim is premature. Indeed, as it now stands, the Supreme Court action is still pending, no judgment has been entered, and Syracuse has not made any payment that would trigger its claim for indemnity or contribution against the State; thus its claim has not yet accrued (see Tedesco v A.P. Green Indus., Inc., 8 NY3d 243, 247 [2007] ["a claim for indemnity or contribution accrues only when the person seeking indemnity or contribution has paid the underlying claim"]; Bay Ridge Air Rights, Inc. v State of New York, 44 NY2d 49, 56 [1978] [where judgment had not "been entered, let alone paid, the claim for indemnity and contribution had not yet accrued"]).
In addition, the State's third affirmative defense alleges that the Court lacks jurisdiction over the claim because it fails to comply with the pleading requirements of the Court of Claims Act § 11 by failing to include a total sum claimed. That provision requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, . . . the total sum claimed" (Court of Claims Act § 11 [b]). The failure to comply with the substantive pleading requirements is a fatal defect in subject matter jurisdiction (see Lepkowski v State of New York, 1 NY3d 201, 208-209 [2003]; accord Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).
The foregoing affirmative defenses raise the specter of the potential of motion practice between Syracuse and the State, which could delay proceedings including the trial resulting in substantial prejudice to Cervantes (see F & K Supply v Johnson, 197 AD2d 814, 814-815 [3d Dept 1993] [the prospect that substantial prejudice in the form of delay in the trial is sufficient reason to deny consolidation even when there are common questions of law or fact]).
At this juncture, the appropriate remedy is to identify the claims as related and therefore be heard before the same judge so that discovery can be coordinated. In the event the litigation reaches the trial stage, Syracuse will have the opportunity to make an application to have the claims tried jointly (see e.g. Mas-Edwards v Ultimate Services, Inc., 45 AD3d 540, 541 [2d Dept 2007] ["[a]lthough the defendants moved to consolidate the actions, the more appropriate method of achieving that purpose is a joint trial"]).
The language of 602 (a) lists joint trial and consolidation as alternatives. Consolidation "completely merges the separate actions such that they lose their original identity" (Alexander, Practice Commentaries, McKinney's Consol Laws of NY, CPLR 602, C602:2). In contrast, joinder of two or more actions for trial "leaves the individual actions intact," and requires only that they be tried simultaneously (id.)
Accordingly, it is hereby
ORDERED that claimant's motion no. M-92401 is denied.
July 25, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims