Opinion
0010617/2007.
October 4, 2007.
DREYER BOYAGIAN LLP, Attorneys for Plaintiffs, (April M. Wilson, Esq. of Counsel), Albany, New York.
LAW OFFICES OF JOHN W. BAILEY ASSOCIATES, P.C., Attorneys for Defendants County of Greene and, Greene County Department of Social Services (Crystal R. Mennillo, Esq., of Counsel), Washington Avenue Extension, Albany, New York.
McCABE MACK LLP, Attorneys for County of Greene and "John and Jane Doe", (Christina M. Bookless, Esq. of Counsel), Poughkeepsie, New York.
DECISION/ORDER
The plaintiffs in the above actions have moved for consolidation, or in the alternative for an order joining them for trial. The Greene County defendants have moved to sever the claims of plaintiff Oathout to provide for a separate trial.
"`[C]onsolidation is generally favored by the courts in the interest 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 consolidation will prejudice a substantial right' (Amtorg Trading Corp. v Broadway 56th St. Assoc., 191 AD2d 212, 213). The burden of demonstrating prejudice to a substantial right is on the party opposing consolidation (Sokolow, Dunaud, Mercadier Carreras v Lacher, 299 AD2d 64, 74)." (Amcan Holdings, Inc. v Torys LLP, 32 AD3d 337, 339 [1st Dept 2006]).
The actions all involve claims of sexual abuse by defendant Serrano, a foster parent for the County of Greene. Many of the infant plaintiffs were in the Serrano house at the same time and will be called as witnesses in all three actions. The issue of when the County had or should have had notice of the wrongful conduct of Mr. Serrano is the same in essentially all of the actions, although its impact on each plaintiffs' claims differ. Moreover, plaintiffs' expert witness testimony as to the nature of the infant plaintiffs' injuries will be substantially the same. The trials are expected to be lengthy and fairly complex. Requiring separate trials would involve significant duplication of effort by the Court and the attorneys involved, as well as significant expense for the experts' testimony. Plaintiffs have certainly shown that consolidation is appropriate.
Defendants in opposition to the motion to consolidate contend that consolidation of all of the claims would lead to jury confusion in that they would not be able to keep track of all of the different issues concerning the ten different plaintiffs, as well as speculation that the jury might be confused by claims of a non-party witness who also resided in the house during the relevant times. Such arguments ignore the fact that the first action already contains six different plaintiffs, with four infants and two parents asserting derivative causes of action. Adding three more infant plaintiffs and one additional parent would not materially alter the complexity of the case. Moreover, any possible confusion could clearly be addressed in the Court's charge to the jury and in summation. The general claims of confusion therefore appear to be speculative and fail to establish a likelihood of prejudice. When compared with the certainty of additional expense, the use of scarce judicial resources and the impact of requiring the infant plaintiffs to repeatedly testify to such disturbing issues, such contention does not warrant denial of consolidation.
Defendants also contend that as plaintiffs, the witnesses could not be sequestered during the trial, thereby allowing their testimony to be refined and colored by hearing other portions of the trial. Again, such argument disregards the fact that there are already four infant plaintiffs in the first action who in the absence of a severance would be entitled to be present. Defendants have only moved for a severance with respect to one of the plaintiffs. The addition of three more infant plaintiffs would not make an appreciable difference. Furthermore, the infant plaintiffs have already given considerable testimony at the criminal trial of Mr. Serrano and have appeared for numerous hearings and depositions in these actions. The likelihood of significant coloration of their testimony seems remote.
Finally, defendants contend that consolidation would bolster the claims of the individual plaintiffs. If such bolstering were shown, consolidation would be inappropriate (see Tarshish v Associated Dry Goods Corp., 232 AD2d 246, 247 [1st Dept 1996]; Bradford v Coleman Catholic High School, 110 AD2d 965, 966 [3rd Dept 1985]). However, as noted above, many of the infant plaintiffs were present in the home at the same time and will be witnesses in each of the trials, if not consolidated. Again, the first action already contains many infant plaintiffs' claims and the addition of three more will not materially alter the complexion of the case. As such, it does not appear that consolidation will bolster any of the separate claims.
Defendants have therefore failed to show any prejudice from consolidation of the three actions. Accordingly, consolidation is warranted.
The Court finds that the circumstances of plaintiff Oathout's claims involve different considerations. Plaintiff Oathout was denied leave to serve a late notice of claim, and as such he is limited to causes of action pursuant to 42 USC § 1983. In order to recover he must meet a significantly higher standard of proof than ordinary negligence. Rather he must show deliberate indifference to a known substantial risk of serious harm (see Schulik v County of Monroe, 202 AD2d 960, 961-962 [4th Dept 1994]). It further appears that plaintiff Oathout was the first foster child to report any sexual abuse. The remaining infant plaintiffs resided in the home after plaintiff Oathout. There are therefore significant differences in the nature of proof of notice to the County defendants necessary to impose liability. It appears that under such circumstances, jury confusion is much more likely (see Gittino v LCA Vision, 301 AD2d 847 [3rd Dept 2003]), as is the possibility of bolstering or a sympathy verdict based upon subsequent actions of the County. It is therefore determined that a severance is appropriate with respect to the claims of plaintiff Oathout.
Accordingly it is
ORDERED that plaintiffs' motion for consolidation is hereby granted, and it is further
ORDERED that defendants' cross-motion for a severance is hereby granted to the extent that the claims of plaintiff Oathout shall be tried separately, and it is further
ORDERED that the caption shall henceforth read
This shall constitute the Decision and Order of the Court. All papers are returned to the attorneys for plaintiffs who are directed to enter this Decision/Order without notice and to serve defendants' counsel with a copy of this Decision/Order with notice of entry.
Papers Considered:
Notice of Motion dated June 7, 2007;
Affidavit of April M. Wilson, Esq. sworn to June 8, 2007 with Exhibits A-J annexed; Memorandum of Law dated June 8, 2007;
Notice of Cross-Motion dated July 3, 2007; Affirmation of Christina M. Bookless, Esq.
dated July 3, 2007 with Exhibits A-V annexed;
Affidavit of Crystal R. Mennillo, Esq. sworn to July 5, 2007 with Exhibits A-I annexed;
Memorandum of Law dated July 5, 2007; Affirmation of April M. Wilson, Esq., undated with Exhibits A-C annexed;
Reply Affirmation of Christina M. Bookless, Esq. dated July 20, 2007 with Exhibit A annexed.