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Genaro THOMPSON and Shanita Belcher, Plaintiff, v. Ajmal HUSSAIN and Chyrell Veda Harley, Defendants.
Recitation in accordance with CPLR 2219 of the papers considered on the notice of motion of the defendant Chyrell Veda Harley (hereinafter Harley), filed on September 2, 2021, under motion sequence one, for an order pursuant to CPLR 602 (a) consolidating the instant action (hereinafter Action No. 1) with the action entitled Drive New Jersey Insurance Company as Subrogee of Genaro Thompson v Ajmal Hussain, et al., Index No. 002987/2020 (hereinafter Action No. 2). The motion is unopposed.
Notice of Motion
Affirmation in Support
Affirmation in Partial Opposition
On March 24, 2021, Genaro Thompson (hereinafter Thompson) commenced the instant action bearing Index Number 507066/2021 (hereinafter Action No. 1), to recover damages for personal injuries against defendant Ajmal Hussain (hereinafter Hussain) by filing a summons and verified complaint with the Kings County Clerk's office. On March 25, 2021, Thompson filed a supplemental summons and amended verified complaint adding Shanita Belcher (hereinafter Belcher) as a co-plaintiff. On April 22, 2021, Thompson filed a supplemental summons and a second amended verified complaint adding Chyrell Veda Harley (hereinafter Harley) as a defendant in Action No. 1.
The second amended verified complaint in Action No. 1's alleges the following salient facts. On June 9, 2018, Thompson was a passenger in a car operated by Belcher. On that date, Belcher was driving on 242 Flatbush Avenue, in the County of Kings, State of New York. On the same date, a motor vehicle driven by Harley collided with a motor vehicle driven by Hussain. The collision between the motor vehicle driven by Harley and the motor vehicle driven by Hussain caused the Hussain motor vehicle to collide with the motor vehicle driven by Belcher. Plaintiffs allege that the collision with the Belcher motor vehicle was due to the defendants’ negligence operation of their respective vehicles without any fault or negligence on the part of the plaintiffs. Plaintiffs further claim that they each sustained serious physical injuries due to the collision.
On April 23, 2021, Hussain interposed a verified answer with cross claims to the second amended verified complaint in Action No. 1. On July 20, 2021, Harley interposed a verified answer with cross claims to the second amended verified complaint in Action No. 1.
By summons and verified complaint dated, January 31, 2020, and filed with the New York County Civil Court on February 20, 2020, Drive New Jersey Insurance Company (hereinafter Drive New Jersey), as subrogee of Thompson, commenced an action bearing Index Number 002987/2020 in the New York Civil Court to recover for property damage to the motor vehicle operated by Thompson caused by the negligence of defendants Hussain and Harley (hereinafter Action No. 2).
The verified complaint in Action No. 2 alleges the following facts. Thompson was owner or lessee of a Mercedes Benz motor vehicle bearing New Jersey State license plate number M88FDY. Prior to June 9, 2018 Drive New Jersey issued an insurance policy to the plaintiff's subrogor, Thompson, covering the above-mentioned motor vehicle. On June 9, 2018, the plaintiff's subrogor's motor vehicle was in contact and collision with the defendants’ motor vehicles. The contact and collision were caused by the defendants’ negligent operation of their respective motor vehicles. As a result, the motor vehicle driven by Drive New Jersey's subrogor was damaged and the plaintiff sustained damages in the sum of $3,704.26, together with interests from June 9, 2018, plus the cost of this action.
Harley's motion papers consist of a notice of motion, an affirmation of counsel, and four annexed exhibits labeled A through D. Exhibit A is a copy of a summons, verified complaint, supplemental summons, and 2nd amended verified complaint in Action No. 1 bearing Index number 507066/2021. Exhibit B is a copy of Hussain's and Harley's verified answer to the 2nd amended verified complaint and their respective discovery demands. Exhibit C is a copy of the summons and verified complaint in Action No. 2 bearing Index number 002987/2020. Exhibit D is a copy of Harley's demand to change venue, verified answer with cross claims and discovery demands in Action No. 2.
Drive New Jersey submitted an affirmation in partial opposition.
LAW AND APPLICATION
CPLR 602 provides as follows:
Consolidation. (a) Generally. 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, may order the actions consolidated, and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Cases pending in different courts. Where an action is pending in the supreme court it may, upon motion, remove to itself an action pending in another court and consolidate it or have it tried together with that in the supreme court. Where an action is pending in the county court, it may, upon motion, remove to itself an action pending in a city, municipal, district, or justice court in the county and consolidate it or have it tried together with that in the county court.
Where common questions of law or fact exist, a motion to consolidate or for joint trial pursuant to CPLR 602 (a) should be granted absent a showing of prejudice to a substantial right by a party opposing the motion Disa Realty, Inc. v Rao, 198 AD3d 869 [2d Dept 2021], citing Bruno v Capetola 101 AD3d 785,786 [2nd Dept 2012]). The trial court has sound discretion in determining whether to order consolidation (Lombardi v Lombardi, 164 AD3d 665, 668 [2nd Dept 2018]). In exercising that discretion, the controlling principle is that interests of justice and judicial economy are better served by consolidation in those cases where the actions share material questions of law or fact (see Lombardi, 164 AD3d at 668, citing Cusumano v Cusumano, 114 AD3d 633, 633–634 [2nd Dept 2014]. Consolidation should not be ordered, however, if to do so would prejudice a substantial right (Amcan Holdings, Inc. v Torys, LLP, 32 AD3d 337 at 339 [1st Dept 2006]; see also Beerman v Morhaim, 17 AD3d 302, 303 [2nd Dept 2005]).
Here, the 2nd verified complaint in Action No. 1 and the verified complaint in Action No. 2 alleges that the accident involved plaintiffs Thompson and Belcher and defendants Hussain and Harley, that the car accident occurred on June 9, 2018 on Flatbush Avenue, County of Kings, City and State of New York, and that personal and property damage occurred as a result of both defendants’ negligence without any fault on the part of the plaintiffs. Both actions involve the same car accident, same location, same defendants, and similar allegations regarding the defendants’ alleged negligence in causing the car collision. Thus, both actions share common issues of fact.
Drive New Jersey has submitted partial opposition claiming that as the plaintiff in Action No.2 it would be prejudiced by consolidation rather than by a joint trial. Instead, they prefer a joint trial with each action maintaining its own separate index number. Consolidation is unwarranted if the opposing party can demonstrate prejudice to a substantial right. Here, Drive New Jersey failed to show prejudice to a substantial right. The Court finds that consolidation would not cause unfair prejudice to Drive New Jersey. Since the actions arise out of the same accident and involve common questions of law and fact, consolidation pursuant to CPLR 602 (a) is not only appropriate, but also, will serve the interest of justice, judicial economy, and avoid the potential inconsistent verdicts (Rhoe v Reid, 166 AD3d 919 [2nd Dept 2018]).
The motion by defendant Chyrell Veda Harley for an order pursuant to CPLR 602 (a) to consolidate Action No. 2 bearing Index Number 002987/2020 into Action No. 1 bearing Index Number 507066/2021 is granted.
The foregoing constitutes the decision and order of this court.
Francois A. Rivera, J.
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Docket No: Index No. 507066/2021
Decided: February 09, 2022
Court: Supreme Court, Kings County, New York.
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