Laccone v Roslyn Chalet

Annotate this Case

Download PDF

Laccone v Roslyn Chalet 2012 NY Slip Op 30828(U) March 7, 2012 Supreme Court, Nassau County Docket Number: 020685/08 Judge: Robert A. Bruno Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ------------------------------------ - .................. .................... [* 1] 5 e-q SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J. --------- x TRIAL/IAS PART 20 NEIL LACCONE and CONSTANCE LACCONE Index No. : Plaintiffs 020685/08 Motion Date: 01/09/12 Motion Sequence: 007 -againstTHE ROSL YN CHALET a/k/a CHALET RESTAURANT & TAP ROOM and SALATA REST. CORP. Defendants. -------- ---------------------------- x AMENDED DECISION & ORDER Papers Numbered Sequence #007 Notice of Motion of Consolidation, Affdavit, Affrmation & Exhibits .............. 1 Affrmation in Opposition to Consolidate ............................................................ 2 Reply Afation............ ............................................... 3 Upon the foregoing papers , the Defendant' s motion for an order directing that Action No. 1 and Action No. 2 be consolidated on the ground that the two (2) actions arise from the same accident and amending the caption pursuant to CPLR 602 (a) is granted for the purose of a join trial. This is an action to recover damages for injures sustained by plaintiff, Neil Laccone , as a result. of an accident which occured on October 26 , 2006 at The Roslyn Chalet restaurant County of Nassau , Roslyn, New York. In November 2008 , plaintiffs commenced an action for personal injures against The Roslyn Chalet , the restaurant where the alleged accident took place and Salta Restaurant Corp. , the owner of said restaurant (hereinafer " Action No. I" Thereafter, on October 20 , 2009 , plaintiffs commenced another action for the same injuries resulting from the same accident against Ber Dur Realty Corporation , the owner of the property where the restaurt is located (hereinafter " Action No. In the instat application , defendants move to consolidate Action No. 1 with Action No. 602. It is uncontroverted that both actions arise from the same accident. It is also uncontroverted that the owner of the Roslyn Chalet as well as Ber Dur Realty have the 2 pursuant to CPLR Page 1 , " ... [* 2] Laccone v. Roslyn Chalet Index No. : 020685/08 same principal , Kevin Dursun. Defendants contend that discovery is complete in Action No. II and discovery is Action No. 2 is unecessar. As such , Defendants maintain that the should consolidate both matters in the interests of judicial economy. COUli In opposition, plaitiffs claim that the outstanding discovery in Action No. san1e as the discovery aleady completed in Action No. 1. Plaintiffs argue that the2 is not the defendants are separate corporations and the theories of liabilty against the defendant in Action No. I are different from the theories of liabilty against the defendant in Action No. 2. Plaintiffs also contend that they would suffer substatial prejudice if both actions were consolidated at ths time as a result of defendants ' delay (approximately one year) in bringing the instant application. The first action is ready for trial while the second action is " stil in the early stages of discovery Furer, plaintiffs acknowledge that the Cour issued an Order in Action No. 1 precluding plaintiffs from offering the testimony of an expert engineer because said expert would assert theories of liabilty that were not disclosed pre note of issue. Plaintiffs assert if the actions are consolidated then defendant may request that this expert be precluded from testifying against Ber Dur Realty thereby fuer prejudicing the rights of plaintiffs. A motion to consolidate actions involving common questions of law or fact pursuant to CPLR 602 rests within the sound discretion of the trial cour. Zupich v. Flushing Hosp. Med. Ctr. 156 A.D. 2d 677. The motion to consolidate should be granted unless the opposing part succeeds in demonstrating prejudice to a substantial right. Zupich, supra. Although the delay of trial may be sufcient reason to deny consolidation (F&K Supply, Inc. v. Johnson 197 A.D.2d 814; Cronin v. Sordoni Skanska Constr. Corp. 36 A. D.3d 448), any prejudice may be cured by expeditious completion of discovery. Callazo v. City of New York 213 A.D.2d 270; Zupich v. Flushing Hospital Med. Ctr. 156 A.D. 2d 677. Here , there is no argument that both actions commenced by plaintiffs seek to recover damages for injures sustaned in an accident that occured at The Roslyn Chalet restaurant. Plaintiffs contention that there are different theories of liabilty against the restaurant owner and the landowner thus precluding consolidation is ineffective. In addition , plaintiffs contention that the different procedural stages of both actions prevent consolidation is equally unavailng. Plaintiffs have not propounded any discovery demands in Action No. 2 nor have they set their opposition papers what discovery is needed. Plaintiffs also failed to offer this fort in court an explanation for their two (2) year delay in demanding discovery in Action No. 2. Moreover defendants admit in their Reply that defendants certainly do not require any discovery from plaintiff given the fact they have already questioned the plaintiff and a nonpar witness about the accident and plaintiffs injures , and already have plaintiffs original discovery responses and medical records pursuant to authorizations provided by the plaintiff. " As such , there canot be a substatial prejudice caused by defendant's delay as defendants agree to waive discovery in I The Note ofIssue was fied on October 27 , 2010. Page 2 ----- ---------- ------------------------ -- --------- - --------- --------------- ------------------------------ -- ------------------------- [* 3] Laccone v. Roslyn Chalet Index No. : 020685/08 Action No. In light of the foregoing and to avoid any injustice which would result from inconsistent verdicts if separate trials were held , the motion for consolidation of Action No. 1 and Action No. 2 is granted for the puroses of a joint trial. The cour will provide plaintiffs an opportity complete discovery on an expedited basis. Therefore , the cour directs that the matter be vacated from the trial calenda for a period of fort- five (45) days , during which time plaintiffs shall complete discovery in Action No. 2 and the matter may be restored to the trial calendar upon ten (10) days notice. Accordingly, the two actions are joined for trial , and each action shall retain its own Index Number, and the caption shall read as follows: SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. ROBERT A. BRUNO, J. ------------------------ --------------------------- ---------------------- x NEIL LACCONE and CONSTANCE LACCONE Plaintiffs -against- a/a THE ROSL YN CHALET CHALET RESTAURAT & TAP ROOM and SALATA REST. CORP. Action No. : Index No. : 1 020685/08 Defendants. NEIL LACCONE and CONSTANCE LACCONE Plaintiffs -against- Action No. : 2 Index No. : 21445/09 BER DUR REALTY CORPORATION Defendant. --------- ---- x Page 3 ~~~ ...---- . [* 4] Laccone v. Roslyn Chalet Index No. : 020685/08 par All paries shall serve upon any so demanding copies of disclosure documents heretofore obtained in the other action, and it is fuer, ordered that The joined actions shall bear the combined caption as set fort above and all matters of including the right to open and close, are reserved to the Justice presiding at the tral practice , joint tral , and it is fuer , ordered that All papers shall reflect the joint caption of these actions , and upon completion of separate Notes of Issue and Certificates of Readiness , as to each action and its fuer , ordered that discovery, the paries shall fie Each par shall be entitled to enter separate Judgements Disbursements in each action respectively, if costs are allowed. and Bils of Costs and Plaintiff shall file a Request for Judicial Intervention in Action No. 2 forthwith and all counsel shall appear at the Supreme Cour , Nassau County at IAS Part 20 thereof located at 100 Supreme Cour Drive , Mineola New York 11501 on MAY 3 , 2012 at 9:30 a. , for a PRELIMARY CONFERENCE not be adjoured. , which date shall The defendant shall serve a copy of tins Order upon all paries to both Actions and upon the Clerk of the Supreme Cour of Nassau County withn fifteen (15) days. Upon receipt of this Order, the Nassau County Clerk is directed to join the fies for tral and amend the caption as diected above. All matters not decided herein are DENIED. This constitutes the decision and order of this Cour. Dated: March 7 , 2012 - Amended March 16 2012 Mineola, New York ENTER: , Hon. Robert A. Bruno , J. ENTE RED MAR 2 0 202 dlFICE Page 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.