Smellie v Santiago

[*1] Smellie v Santiago 2012 NY Slip Op 52340(U) Decided on December 20, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 20, 2012
Supreme Court, Queens County

Bryan R. Smellie, Plaintiff,

against

Rosalie Santiago, SIEF ALDEEN B. SATI, PAN TAXI CORP., KAI YONG TANG, ELRAC, LLC, CHUN HUANG, YAM SZE YI, and DIAMLER TRUST, Defendant(s).



11480/2011

Charles J. Markey, J.

The following papers numbered 1 to 2 read on a motion by defendants Yam Sze Yi, Huang Yi, and Diamler Trust, for a joint trial of actions bearing Index No. 15900/11 and Index No. 16332/11 pending in the Supreme Court, Kings County, and the aforecaptioned action in Supreme Court, Queens County; and another motion by defendant Rosalie Tuzzino, sued herein as Rosalie Santiago, pursuant to CPLR 602, consolidating this action with an action pending in Kings County Supreme Court, entitled Rosalie Tuzzino v Yam Sze Yi and Huang Yi,under Index No. 15900/11 or in the alternative granting a joint trial of the two actions.

Papers Numbered

Notice of Motion-Affidavits-Exhibits.............................................................................1-2

As an initial matter, the decision-making involved in a motion for consolidation or joint trial is one that involves honed analysis, and, in most cases, is capable of being resolved and decided quickly. Unfortunately, in the action, two separate motions were brought in the Centralized Motion Part ("CMP") in the courthouse in Jamaica, Queens County, in this action, on two separate days, that needlessly consumed more time and a waste of judicial resources by this Court. The moving counsel on the second motion should have known of the earlier motion and avoided making a needless second motion.

By notice of motion dated September 24, 2012, Erwin B. Newman, Esq., of Newman and Newman, LLP, prepared a well-organized and well-articulated motion seeking consolidation or a joint trial of three separate actions that all arise from the same vehicular accident. Two of the actions are in Kings County, and the aforecaptioned action is in this Court, in Queens County. Eight different law firms are involved in the three actions. Mr. Newman caused his motion to be served on September 24, 2012, and it [*2]was returnable in the CMP on October 25, 2012, where it was marked "Fully submitted, no opposition."

Another law firm involved in the aforecaptioned action, by notice of motion dated September 26, 2012, also made a motion for similar relief ("the second motion"), although such motion was not served until October 2, 2012. The second motion was made returnable in CMP in Jamaica on November 5, 2012, where it was similarly marked "Fully submitted, no opposition." Had the other law firm that made the second motion been alert, it would have made arrangements for both motions to be heard on the same day. Both motions were handled separately by CMP naturally, and they were sent over to the undersigned's Chambers where the duplication of wasted effort was discovered.

Although motions to consolidate and/or for joint trial are commonplace, such motions do take up considerable time since the undersigned, as is the practice in this Court, does not permit parties to stipulate to such relief since invariably even experienced counsel will forget an important decretal paragraph. Thus, it is the undersigned's practice, especially where the Court grants a joint trial as opposed to consolidation, for Chambers to prepare, review, and issue such orders since the Court must "cover all bases" by including all essential decretal paragraphs. The preparation of decisions that grant joint trial motions require a lot of Chambers's time, since, like snowflakes, no two cases are exactly alike, and the decretal paragraphs have to be drafted for the particular circumstances.

Since the heart of a motion for a joint trial is to avoid the needless and wasteful consumption of judicial resources, counsel [who shall not be identified in this opinion] that prepared the motion that was returnable on November 5, 2012, and marked as Motion Sequence Number 2, ironically wasted judicial time, effort, and energy by remaining ignorant of Mr. Newman's earlier and well-presented motion.

This Court grants both motions, under Motion Sequence Numbers 1 and 2, to the following extent: that Action No.2 bearing Index No. 15900/11 and Action #3 bearing Index No. 16332/11 shall be removed from the Supreme Court, Kings County, to the Supreme Court, Queens County, and, upon removal and after a Supreme Court, Queens County Index Number is assigned to each of the two actions, they shall be combined with this Action for joint trial, inasmuch as these actions involve common questions of law or fact (CPLR 602).Although combined for joint trial, the actions shall remain separate actions for all other purposes including motions. A separate index number, request for judicial intervention, and note of issue shall be filed for each action.

The titles and index numbers of the actions to be jointly tried are: [*3]

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS -

x

BRYAN R. SMELLIE,

Plaintiff,

-against-ACTION NO. 1

ROSALIE SANTIAGO, SIEF ALDEEN B. SATI,INDEX NO. 11480/11

PAN TAXI CORP., KAI YONG TANG,

ELRAC, LLC, CHUN HUANG, YAM SZE YI,

and DIAMLER TRUST,

Defendants.

x

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

x

ROSALIE TUZZINO,ACTION NO. 2

Plaintiff,

-against-INDEX NO. 15900/11

YAM SZE YI and HUANG YI,

Defendants.

x

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF QUEENS

x

JOSEPH C. TUZZINO,ACTION NO. 3

Plaintiff,

-against-INDEX NO. 16332/11

HUANG YI and YAM SZE YI,

Defendants.

x [*4]

It is further ORDERED, that upon being served with a copy of this Order with notice of entry, and payment of the applicable fees, if any, the Clerk of the Supreme Court, Kings County shall forthwith transfer the file in Action Number 2, bearing Index Number 15900/11, and the file in Action Number 3, bearing Index Number 16332/11, to the Clerk of the Supreme Court, Queens County, and, it is further

ORDERED that a copy of this Order with notice of entry, attaching a copy of this Order that bears the County Clerk's dated stamp of entry, shall be served by any party upon all parties to the actions combined, the Clerk of Queens County, the Clerk of the Supreme Court, Queens County, and shall also be annexed to the Notes of Issue at the time of filing, and, it is further

ORDERED that the order of the actions for presentation at trial shall be Smellie v Santiago, under Index Number 11480/2011, followed by Rosalie Tuzzino v Yam Sze Yi, et al., , and then, finally, Joseph C. Tuzzino v Huang Yi, et al.

Finally, the Court notes that, in the present case, consolidation is not appropriate. Where one particular individual or entity will be both a plaintiff in one action and a defendant in another action, consolidation is not appropriate. Rogin v Rogin, 90 AD3d 507, 508, n.1 [1st Dept. 2011]; MCC Funding LLC v Diamond Point Enterprises, LLC, 36 Misc 3d 1206(A), 2012 WL 2537893, 2012 NY Slip Op. 51212(U), slip op. at 10 [Sup Ct Kings County 2010]; Bofinger v Bofinger, 107 Misc .2d 573, 576-577 [Sup Ct Suffolk County 1981].

Instead, a joint trial is the proper relief where a particular individual or entity will be both a plaintiff in one action and a defendant in another action. As stated by the court in Vidal v Sheffield Farms Co., 208 Misc. 438, 440 [Sup Ct Bronx County 1955] :A party, in our adversary process of simple litigation, cannot be a protagonist in the action and at one and the same time be his own personal antagonist—and that is precisely what is meant by being a plaintiff and a defendant in the same case. Where the parties desire organic consolidation—a joinder for all purposes of the litigation—the new title is one in which the litigants are merged, with only one group of plaintiffs and only one group of defendants. In such case, Vidal must be a plaintiff or a defendant—he cannot be both . . . .

This Court's legal research has revealed that such thinking has not been consistent. Thus, in an older action that was not officially reported, in Winn v Zone Oil Trucking Corp., 117 NYS 189 [Sup Ct New York County 1950], the court expressly granted consolidation even though a single litigant appeared as a plaintiff in one action and a [*5]defendant in another action. This Court disagrees with the holding in Winn.

In the present case, the papers reveal that litigant "Rosalie Santiago" - - who is the plaintiff in the aforecaptioned action already in this Court - - and "Rosalie Tuzzino" who appears as the plaintiff in "Action Number 2" are the same individual. Since they are the same person, it would be an anomaly to permit a litigant to appear as both a plaintiff and a defendant; hence, consolidation, in such a situation, as in the present case, is inappropriate and improper. Instead, the correct relief is a joint trial.

In sum, the two motions are granted to the extent discussed above of granting a joint trial.

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: December 20, 2012