Opinion
0022420/2005.
December 12, 2007.
Feldman Feldman, Esqs, Attorney for NATIONWIDE LANCER Smithtown, New York.
D'Ambrosio D'Ambrosio, Esqs., Attorneys for DEVINE, Huntington, New York.
Nicolini Paradise, Esqs, Attorneys for BIFULCO, Mineola. New York.
Zaklukiewicz Puzo Morrissey, LLP, Attorneys for SOUTH BAY FLYNN Islip Terrace, New York.
UPON the following papers numbered 1 to 12 read on this Motion: Defendants SOUTH BAY FLYNN's Motion (Pages 1-12 Exhibits A-J); it is.
ORDERED, that this unopposed application of Defendant Defendants SOUTH BAY FLYNN is hereby granted to the extent set forth herein below.
Defendarts SOUTH BAY FLYNN moves this Court for an Order, pursuant to CPLR 602, removing the above referenced actions entitled Allstate v South Bay (Action No. 2; Index No: CEC 17423-2005) and Allstate v Bifulco (Action No. 3; Index No: CEC 1883-2007) from District Court of Suffolk County to Supreme Court, County of Suffolk; and upon removal, joining said actions with the actions entitled Nationwide v Devine (Action No. 1; Index No: 2005-22420) and Lancer v Bifulco (Action No. 4; Index No: 2006-22350), pending in Supreme Court, Suffolk County.
Since the actions arise from the same issues and involve common questions of fact, consolidation ( joinder, in the matter at bar regarding the instant Motion) is appropriate to avoid inconsistent verdicts ( see Orkin v White Plains Hospital , 97 AD2d 399, 467 NYS2d 225 [2nd Dept 1983]). Moreover, it would be a waste of judicial resources and duplicitous to require two separate trials with the concomitant costs and expenses ( see Wieder v Skala , 218 AD2d 507, 630 NYS2d 308 [1st Dept 1995]).
Furthermore, in Barbilex Associates v Pesaitis , 113 Misc2d 436, 449 NYS2d 387, the Court stated that:
"Consolidation or joinder of trials are procedural devices to promote the economic resolution of similar actions, irrespective of the number of parties involved. (See Tone and Stifler, Joinder of Parties and Consolidation of Multiparty Actions, 1967 Univ. of Illinois Law Forum 209, 221). A court considering consolidation is required to render a pragmatic judgment as to the feasibility of fusing two or more separately filed complaints and it must weigh this judgment against the possibility of an unwieldy trial. Id. at 222."
The Court is persuaded that the bests interests of all parties to these actions, as well as expense of judicial resources, would best be served by joinder of these matters for trial.
That said, this Court reminds all parties of the distinctions set forth in Mars Associates, Inc v New York City Educational , 126 AD2d 178, 513 NYS2d 125 [1st Dept 1987], wherein the Court recited the following:
"Although there are similarities between consolidating an action and ordering a joint trial of an action, there are also significant differences. On the one hand, with consolidation there is a total merger of the separate actions into one action. However, with the joinder of trials, each action remains independent of the other. In other words, as we stated in Pigott v. Field, 10 AD2d 99, 101, 197 NYS2d 648 (1st Dept. 1960), "consolidation gives rise to a new action displacing the actions affected thereby, whereas a joint trial preserves the integrity of each of the actions . . .". Thus, "[i]n consolidated actions only one judgment is entered, while in joint trials separate verdicts and judgments are entered and each may be appealed from. . ." (2 Weinstein-Korn-Miller, N.Y.Civ.Prac, paragraph 602.02, page 6-11). "
The Court further notes that Action No. 1 and another companion matter entitled Lisa Hayward v Michael Berk, Joan Berk, Luis Mazara, Juana Torres and James Griffin Jr , are presently pending before Supreme Court, Suffolk County.
For all the reasons stated herein above and in the totality of the papers submitted herein, it is, therefore,
ORDERED, that this unopposed application of Defendants SOUTH BAY FLYNN for an Order removing the above referenced actions entitled Allstate v South Bay (Action No. 2; Index No: CEC 17423-2005) and Allstate v Bifulco (Action No. 3; Index No: CEC 1883-2007) from District Court of Suffolk County to Supreme Court, County of Suffolk; and upon removal, joining said actions with the actions entitled Nationwide v Devine (Action No. 1; Index No: 2005-22420) and Lancer v Bifulco (Action No. 4; Index No: 2006-22350), pending in Supreme Court, Suffolk County; and it is further
ORDERED, that Defendants SOUTH BAY FLYNN are hereby directed to obtain from the Suffolk County Clerk a no-fee Index Number for Actions No. 2 and 3, and thereafter file a no-fee Request for Judicial Intervention, so that this action may properly proceed; and it is further
ORDERED, that thereafter all parties are directed to appear for a Preliminary Conference on February 6, 2008, at the Courthouse at 235 Griffing Avenue, Riverhead, New York, in order to set forth anew discovery schedule: and it is further
ORDERED, that Counsel for the moving party herein is hereby directed to serve a copy of this order, with Notice of Entry, upon Counsel for all parties, upon the Calendar Clerk of this Court, the Calendar Clerk of the Suffolk County District Court, and upon the Suffolk County Clerk, within twenty (20) days of the date this order is entered by the Suffolk County Clerk.