Opinion
10264N Index 31184/17E, 12228/17, 150221/18E, 150316/18
10-31-2019
Jesus LEMA, et al., Plaintiffs–Appellants–Respondents, v. The 1148 CORPORATION, Defendant-Respondent. [And Other Actions] Fireman's Fund Insurance Company as subrogee of The 1148 Corporation, Plaintiff-Respondent, v. Montano Wood Care, Corp., Defendant–Respondent–Appellant.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants-respondents. Lewis Johs Avallone Aviles, LLP, New York (David Metzger of counsel), for respondent-appellant. Lawrence, Worden, Rainis & Bard, P.C., Melville (Karin McCarthy of counsel), and Sheps Law Group P.C., Huntington (Robert C. Sheps of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellants-respondents.
Lewis Johs Avallone Aviles, LLP, New York (David Metzger of counsel), for respondent-appellant.
Lawrence, Worden, Rainis & Bard, P.C., Melville (Karin McCarthy of counsel), and Sheps Law Group P.C., Huntington (Robert C. Sheps of counsel), for respondents.
Friedman, J.P., Kapnick, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered April 6, 2018, which denied the motion of plaintiffs Jesus Lema and Maria Lema for consolidation of three personal injury actions and to set venue in the Bronx, and granted the motion of defendant The 1148 Corporation for joint discovery and trial of the three personal injury actions and one subrogation action, with venue set in New York County, unanimously affirmed, without costs.
There is a preference to join cases for discovery and trial in the interests of judicial economy and ease of decision-making where there are common questions of law and fact, unless the party opposing the motion demonstrates that joint trial will prejudice a substantial right; deference is accorded to the motion court's discretion (see CPLR 602[a] ; Raboy v. McCrory Corp., 210 A.D.2d 145, 147, 621 N.Y.S.2d 14 [1st Dept. 1994] ; Matter of Hill v. Smalls, 49 A.D.2d 724, 373 N.Y.S.2d 134 [1st Dept. 1975], appeal dismissed 38 N.Y.2d 893, 382 N.Y.S.2d 749, 346 N.E.2d 550 [1976] ). The motion court here providently exercised its discretion in finding that common questions of fact and law warrant invocation of CPLR 602(a) for joint discovery and trial of all four actions (see Bass v. France, 70 A.D.2d 849, 418 N.Y.S.2d 43 [1st Dept. 1979] ; Bank of N.Y. v. Rodgers, 40 A.D.2d 777, 337 N.Y.S.2d 620 [1st Dept. 1972] ). That the fourth action is one for subrogation does not substantially prejudice plaintiffs (see Fisher 40th & 3rd Co. v. Welsbach Elec. Corp., 266 A.D.2d 169, 170, 699 N.Y.S.2d 21 [1st Dept. 1999] ; compare McGinty v. Structure–Tone, 140 A.D.3d 465, 33 N.Y.S.3d 52 [1st Dept. 2016] [litigating an insurance coverage claim together with the underlying liability issues is inherently prejudicial to the insurer] ).
It was also a provident exercise of discretion for the court to set venue in New York County when it joined the actions. While the first action was filed in the Bronx, that county bears no connection to this matter other than being the residence of the plaintiffs in that action. That the incident occurred in New York County, hospital treatment of plaintiffs was provided in New York County, and two of the four actions are already pending in New York County are not special circumstances sufficient to justify disturbing the motion court's exercise of discretion such that the motion court's exercise of discretion (see Fields v. Zweibel, 36 A.D.2d 808, 320 N.Y.S.2d 309 [1st Dept. 1971] ; see also Ferolito v. Vultaggio, 115 A.D.3d 541, 982 N.Y.S.2d 449 [1st Dept. 2014] ).