LICONA RUBIO v. 10 (2023)

Order, Supreme Court, New York County (Erica Edwards, J.), entered on or about August 16, 2022, which granted defendant New York City Health and Hospitals Corporation's motion to consolidate this action with an action pending in Kings County and transfer the consolidated action to New York County, unanimously reversed, on the law and the facts, without costs, and the motion denied.

Plaintiff commenced suit in Kings County against several construction-related entities alleging violations of Labor Law §§ 200, 240, and 241, and common-law negligence in connection with a work place accident causing injuries.  After the accident plaintiff was taken to a NYCHHC facility for treatment.  Plaintiff also commenced this suit in New York County against NYCHHC, alleging medical malpractice in connection with his post-accident treatment.  Although the Labor Law action and this medical malpractice action involve common questions of fact, the medical malpractice action involves numerous additional allegations of professional negligence and injuries that are irrelevant to the Labor law action, and there are no common defendants.

The issues and applicable legal principles presented in plaintiff's Labor Law action and this medical malpractice action arising out of his subsequent treatment, are so dissimilar that joinder or consolidation pursuant to CPLR 602(a) would not be beneficial and would likely result in jury confusion (see Brown v. Neighborhood Assn. for Inter–Cultural Affairs, Inc., 215 A.D.3d 416, 416, 185 N.Y.S.3d 669 [1st Dept. 2023];  see also Kaladze v. Ocean Park Acquisition, L.P., 203 A.D.3d 1151, 1152–1153, 163 N.Y.S.3d 436 [2d Dept. 2022];  Cromwell v. CRP 482 Riverdale Ave., LLC, 163 A.D.3d 626, 627–628, 80 N.Y.S.3d 423 [2d Dept. 2018]).  While a common injury is alleged in both actions, many additional and different injuries are alleged in the Labor Law action, and there are no common defendants (see Brown, 215 A.D.3d at 416, 185 N.Y.S.3d 669).