Opinion
Index No. 608209/2016E Index No. 623093/2017E Motion Sequence No. 003; M
08-28-2018
Redani Saravia, Plaintiff, v. Robert J. Jahoda, Defendant. Robert J. Jahoda, Third-Party Plaintiff, v. North Fork Drywall & Insulation, Inc., Third-Party Defendant. Redani Saravia, Plaintiff, v. Anthony Specia Construction Inc. and North Fork Drywall & Insulation, Inc., Defendants.
Unpublished Opinion
Motion Date: 8/21/18
Submitted: 8/22/18
PRESENT: WILLIAM B. REBOLINI Justice
William B. Rebolini Judge
Upon the E-file document list numbered 52 to 64 read on this application by defendant Robert J. Jahoda for an order pursuant to CPLR 602 consolidating Action NO.1 under index number 608209/2016 and Action NO.2 under index number 623093/2017 for joint trial an4joint discovery is granted, without opposition; and it is further
ORDERED that the defendant's application for a joint trial and joint discovery of Action No. 1 bearing Index Number 608209/2016 and Action No.2 bearing Index Number 623093/2017 is granted, without opposition; and it is further
ORDERED that each action joined for trial and discovery shall retain a separate caption and separate court costs shall be paid in each action, including those costs attendant with the filing of Notes of Issue; and it is further
ORDERED that all motions interposed in each joined action shall bear a single caption reflecting the action in which said motion is made; however, all motions shall be served upon counsel for all parties appearing in each joined action; and it is further
ORDERED that a compliance conference in each joined action shall be held on Wednesday December 5 2018 at 9:30 a.m., Part 7, located at One Court Street, Riverhead, NY 11901. Counsel for the respective parties in each joined action are directed to appear.
New York CPLR S 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 of 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." A motion to consolidate or for a joint trial pursuant to CPLR 602 (a) rests in the sound discretion of the trial court (Mattia v Food Emporium, Inc.,259 A.D.2d527,686N.Y.S.2d473 [2dDept. 1999]). Consolidation or joint trials are "favored by the courts in serving the interests of justice and judicial economy" (Flaherty v RCP Assoc 208 A.D.2d 496, 498, 616 N.Y.S.2d 801[2nd Dept, 1994]; see also Shanley v Callanan Indus,, 54N.Y.2d 52,574444 N.Y.S.2d 585, 429 N.E.2d 104 [1981]; Mideal Homes Corp v L&C Concrete Work, 90 A.D.2d 789, 455 N.Y.S.2d 394 [2nd Dept. 1982]). The Court notes that the attorneys for the parties have executed a stipulated dated August 22, 2018 consenting to a consolidation of these actions.
Here these two negligence actions seek to recover damages for personal injuries allegedly sustained by, the plaintiff Redani Saravia as result of a fall from a height that allegedly occurred on June 4 2015 at approximately 12:00 p.m. at the premises located at 6 Beach Avenue, Sag Harbor, New York Being that both actions involve the same incident and common questions of law and fact exist a joint trial and joint discovery is warranted. However, a joint trial rather than a consolidation of the actions is appropriate, inasmuch as one of the defendants in the second action has alleged laches and the statute of limitations as defenses (see Vojtech Blau, Inc. v. Sara, 160 Misc.2d 431, 609 N.Y.S.2d 515 [NY Cty 1994]; see also Whiteman v. Parsons Transportation Group of New York /«C.,72A.D.3d677,900N.Y.S.2d87[2dDep..2010]; Mas-Edwards v. Ultimate Services, Inc., 45 A.D.3d 540 845 N.Y.S.2d 414 [2d Dept. 2007] citing Perini Corp. v. WDF, Inc., 33 A.D.3d 605, 822N.Y.S.2d295 [2d Dept. 2006]; Cola-Rugg Enterprises, Inc., v. Consolidated Edison Company of New York, Inc., 109 A.D.2d 726, 486 N.Y.S.2d 43 [2d Dept. 1985]). Moreover, the Second Department prefers joint trials over consolidations in the interest of justice and judicial economy (Megyesi v. Automotive Rentals, Inc., 115 A.D.2d 596, 496 N.Y.S.2d 473 [2d Dept. 1985]).
Accordingly, the defendants' motion seeking an order for a joint trial and joint discovery pursuant to CPLR 602 is granted, without opposition.
A compliance conference in these joined actions will be held on Wednesday, December 5, 2018.
The foregoing constitutes the Decision and Order of the Court.