CROMWELL v. New York City Health and Hospitals Corp., et al., nonparty-respondents. (2018)

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Kings County (Donald Scott Kurtz, J.), dated November 1, 2016.  The order denied the defendants' motion pursuant to CPLR 602(a) to join for trial this action with an action entitled Cromwell v. Brookdale University Hospital Medical Center, pending in the Supreme Court, Kings County, under Index No. 3490/14.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff Jerome Cromwell (hereinafter the injured plaintiff) allegedly injured his foot when he stepped in a rodent hole on property owned by the defendant CRP 482 Riverdale Avenue, LLC, and managed by the defendant Liberty Place Property Management, LLC (hereinafter together the property defendants).  The injured plaintiff, and his wife suing derivatively, subsequently commenced this action against the property defendants, seeking damages on theories of negligent maintenance of the property, nuisance, and breach of the warranty of habitability under Real Property Law § 235–b.  Approximately one year later, the plaintiffs commenced a separate action against Brookdale University Hospital Medical Center, as well as New York City Health and Hospitals Corp. and Kings County Hospital Center (hereinafter together the City defendants), based on their treatment of Cromwell's foot injury, seeking damages under theories of medical malpractice and lack of informed consent.

Discovery was thereafter completed in this action, and a note of issue was filed certifying that the matter was ready for trial.  More than nine months later, and almost 21/212 years after the commencement of the second action, the property defendants moved pursuant to CPLR 602(a) to join for trial this action with the second action.  At that time, little discovery had taken place in the second action.  The plaintiffs and the City defendants opposed the motion.  The Supreme Court denied the motion, and the property defendants appeal.  We affirm.

“When 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 the matters in issue” (CPLR 602[a];  see Moses v. B & E Lorge Family Trust, 147 A.D.3d 1043, 1045, 48 N.Y.S.3d 427;  Oboku v. New York City Tr. Auth., 141 A.D.3d 708, 709, 35 N.Y.S.3d 710;  Lecorps v. Bromberg, 127 A.D.3d 931, 932, 6 N.Y.S.3d 627).  The determination of such a motion is addressed to the sound discretion of the trial court (see Lansky v. Bate, 132 A.D.3d 737, 738, 17 N.Y.S.3d 653;  Hanover Ins. Group v. Mezansky, 105 A.D.3d 1000, 964 N.Y.S.2d 201;  Lingfei Sun v. City of New York, 99 A.D.3d 673, 674, 952 N.Y.S.2d 98).  Denial of the motion may be warranted where common questions of law or fact are lacking (see Weiss & Biheller, MDSE, Corp. v. Preciosa USA, Inc., 127 A.D.3d 1176, 5 N.Y.S.3d 909;  Heydt Contr. Corp. v. Tishman Constr. Corp. of N.Y., 163 A.D.2d 196, 197, 558 N.Y.S.2d 47), where the actions involve dissimilar issues or disparate legal theories (see Gouldsbury v. Dan's Supreme Supermarket, 138 A.D.2d 675, 675–676, 526 N.Y.S.2d 779;  Brown v. Brooklyn Union Gas Co., 137 A.D.2d 479, 480, 524 N.Y.S.2d 228), or where a joint trial would substantially prejudice an opposing party (see Skelly v. Sachem Cent. School Dist., 309 A.D.2d 917, 918, 766 N.Y.S.2d 108;  Continental Bldg. Co. v. Town of N. Salem, 150 A.D.2d 518, 541 N.Y.S.2d 112) or pose a risk of confusing the jury or rendering the litigation unwieldy (see County of Westchester v. White Plains Ave., LLC, 105 A.D.3d 690, 691, 962 N.Y.S.2d 648;  D'Abreau v. American Bankers Ins. Co., 261 A.D.2d 501, 502, 690 N.Y.S.2d 655).

Here, the Supreme Court providently exercised its discretion in denying the property defendants' motion for a joint trial given the limited commonality between the two actions, the disparate legal theories and dissimilar issues they involve, the very different procedural stages of the two actions at the time the motion was made, and the potential prejudice to the opposing parties as well as the risks of juror confusion and unwieldy litigation if a joint trial was granted (see Weiss v. Biheller, MDSE, Corp. v. Preciosa USA, Inc., 127 A.D.3d at 1176, 5 N.Y.S.3d 909;  County of Westchester v. White Plains Ave., LLC, 105 A.D.3d at 691, 962 N.Y.S.2d 648;  Suckishvili v. Visiting Nurse Serv. of N.Y., 74 A.D.3d 433, 900 N.Y.S.2d 874;  Skelly v. Sachem Cent. School Dist., 309 A.D.2d at 918, 766 N.Y.S.2d 108;  Heydt Contr. Corp. v. Tishman Constr. Corp. of N.Y., 163 A.D.2d at 197, 558 N.Y.S.2d 47;  Continental Bldg. Co. v. Town of N. Salem, 150 A.D.2d at 518, 541 N.Y.S.2d 112;  Gouldsbury v. Dan's Supreme Supermarket, 138 A.D.2d at 676, 526 N.Y.S.2d 779;  Brown v. Brooklyn Union Gas Co., 137 A.D.2d at 480, 524 N.Y.S.2d 228).

MASTRO, J.P., COHEN, CONNOLLY and BRATHWAITE NELSON, JJ., concur.